KAMLESH KUMAR Vs. GEETA DEVI

JUDGEMENT

(1.) With consent of the parties, the matter is heard finally. This petition under Article 227 of the Constitution of India has been filed by the petitioner / plaintiff against order dtd. 16/4/2019 (Annexure P/5), passed in Execution Case No.20/2018 by the learned District Judge, Neemuch (MP), whereby in execution proceedings initiated by respondents No.1 to 3 / defendants No.1 to 3, an application was filed by the petitioner / plaintiff under Order 21 Rule 10 read with Order 47 read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) for dismissal of the execution proceedings on the ground that judgment and decree dtd. 16/5/2018 (Annexure P/1) passed by the District Judge, Neemuch, District Neemuch in Regular Civil Suit No.49-A/2011 is sought to be executed by the defendants No.1 to 3 who, apparently are not the decree holders.

(2.) Learned counsel for the petitioner / plaintiff has submitted that the respondent (s) being judgement debtor cannot file execution proceedings even though the decree was passed in a suit for partition. Counsel has also drawn the attention of this Court to the fact that initially written statement of the respondent (s) / defendant (s) was that the partition has already taken place and as such, a decree of partition cannot be passed; and now after the decree is passed, the respondent / defendant (s) themselves are proceeding to execute the decree.

(3.) In support of his contentions, learned counsel for the petitioner / plaintiff has relied upon a decision rendered by a coordinate bench of this Court in the case of Bhanu Shankar Raikwar & another v. Vijay Shankar Raikwar & others reported as 2013 (1) MPLJ 556, wherein also, a decree was passed in a partition suit and the Court has held that the defendant is a "Judgment Debtor" as provided under Sec. 2 (10) of the Code for all practical purposes, hence, cannot execute the decree. Thus, it is submitted that the execution proceedings initiated by the respondent / defendant be set aside.