SAJJAN SINGH Vs. KANTABAI

JUDGEMENT

(1.) The petitioner has filed this present petition challenging the order dated 19.04.2018 passed by learned II Civil Judge, Class-I, Dhar in Execution Case No.17/2017 whereby the learned Judge has dismissed the application filed by the petitioner regarding dismissal of the execution proceedings on the ground of mis-joinder and non-joinder of parties in the execution including the judgment debtor.

(2.) The facts of the case in brief are that on 15.12.1997 the respondent no.1 and Late Mrs.Ghisi Bai Wd/o Ramsingh filed a Civil Suit No.93-A/2000 for partition of the lands bearing Survey No.88/1,138/2,138/3/2,248,284/2 and 243 ad-measuring the total area of 4.144 Hectare. The suit was filed for equal partition of the said property among the plaintiffs and the defendants. The preliminary decree was passed deciding the shares of the parties. The petitioner being one of the 7 defendants whereas the present respondent being one of the 2 plaintiffs had their shares decided. Ghisibai and Umarobai were provided a share of 1/16th whereas the petitioner and respondent alongwith Ramkanya, Leelabai, Ahilyabai, Bholibai were awarded share of 1/8th. Being aggrieved by the said impugned judgment and preliminary decree the petitioner preferred an appeal. The learned appellate Court vide judgment and decree partially allowed the appeal whereby the shares of the parties defined by the learned trial Court was modified. The said judgment and decree was challenged by the petitioner in S.A.No.450/2005. The said appeal was dismissed by this Court.

(3.) In the meanwhile, the respondent no.1 and Ghisibai and plaintiff no.1 in the initial suit for partition initiated proceedings before the Tehsildar for partition and possession as per the decree passed by the first appellate Court. The same was decided vide order dated 29.04.2010 against which appeal was filed by the petitioner before the Collector and the same was also dismissed vide order dated 30.06.2011. Thereafter, respondent no.1 initiated execution proceedings before the learned Ist Civil Judge, Class-I, Dhar for the execution of preliminary decree. In the said execution case only the respondent no.2 and respective respondent no.3 were made parties by the respondent no.1. Neither the petitioner nor any judgment debtor or even Collector Dhar were made party to the execution of preliminary decree. The petitioner filed a stay application for restraining the compliance of the possession warrant. The objection was raised in the said applications so as to quash the said execution on the ground that it is initiated for the execution on the ground that it is initiated for the execution of the preliminary decree which is not permissible. The execution Court rejected both the applications of the petitioner.