Md. Islamuddin Badgujar Vs Smt. Pratibha Gupta

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 418 of 2024

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1. Md. Islamuddin Badgujar S/o Haji Sirajuddin Badgujar Aged About 41 Years Caste - Muslman Teli, Occupation - Business Village - Telipara Azad Chowk Rajnandgaon, Tahsil And Distt.- Rajnandgaon (C.G.)

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2. Haji Sadruddin Badgujar S/o late Sirajuddin Aged About 51 Years Caste - Muslman Teli, Occupation - Business, Village - Manavmandir Road, Raja Textiles Rajnandgaon , Tahsil And Distt.- Rajnandgaon (C.G.)

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---- Petitioners

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Versus

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1. Smt. Pratibha Gupta W/o Krishna Swaroop Gupta Aged About 53 Years Caste - Agrahari, Occupation - Advocate , R/o Village - G.E. Road, Rajnandgaon, Tahsil And Distt.- Rajnandgaon (C.G.)

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2. Smt. Sarojni Gupta, W/o Dr.Rajesh Swaroop Gupta, R/o Village - Mahesh Nagar Rajnandgaon, Tahsil And Distt.- Rajnandgaon (C.G.)

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3. Yusuf Gouri S/o Ismail Gouri Aged About 61 Years Caste - Musalman Teli, Occupation Business, R/o Near Karande Medical Store Juni Hatri Rajnandgaon, Tahsil And Distt.- Rajnandgaon (C.G.)

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4. Pramod Das Bairagi S/o Surajbhan Bairagi Caste - Waisnav, Village - Ward No. 39, Basantpur, Rajnandgaon, Tahsil And Distt.Rajnandgaon (C.G.)

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---- Respondents

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CAUSE TITLE TAKEN FROM CIS PERIPHERY

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For Petitioners : Mr. Badruddin Khan, Advocate.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board

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18.06.2024

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1. This Petition has been filed under Article 227 of the Constitution of India against the attachment proceeding in the execution arising from the judgment and decree passed in Civil Suit No.17-A/2017 by the

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Additional District Judge, Fast Track Court, Rajnandgaon(C.G.) in the matter of Smt. Pratibha Gupta and Another vs. Yusuf Gouri and Others and in the appeal preferred by respondent No.3 in FA No.124/2022 vide judgment dated 18.10.2022, while affirming the judgment and decree passed by the trial Court, had also allowed the cross-objection of plaintiffs and granted mesne profit at the rate of Rs. 5,000/- per month from 13.02.2017 till the premises got vacated from the respondents.

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2. Learned counsel for the petitioner would submit that as the trial Court has not passed any money decree against the present petitioner herein and particularly stated that the plaintiffs are not entitled for mesne profit, as such, the attachment warrant is not sustainable. Further, the plaintiffs/respondent No.1 and 2 has not filed appeal for getting mesne profit. So prays to allow the petition.

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3. I have heard learned counsel for the petitioners and perused the documents annexed with the petition carefully.

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4. Perused the judgment passed by the trial Court in Civil Suit No. 17-A/2017 as also the appellate judgment which was passed in FA No.124/2022. In the said suit, the plaintiffs/respondent No.1 and 2 had filed a cross-objection and in Para 22 of the judgment of the First Appellate Court, it has been categorically held that the cross-objection filed by respondent No.1 and 2 is allowed and mesne profit at the rate of Rs.5000/- per month would be paid from 13.02.2017 till the premises got vacated from the respondents.

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5. The said execution has been preferred for realisation of the said amount which was passed in favour of the plaintiffs by the First Appellate Court.

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6. It is well settled that the decree of the First Appellate Court gets merged into decree passed by the trial Court. So the submission of learned counsel for the petitioners that the trial Court has not passed any such relief and the pleading and submission is misconceived and contrary to facts of the case and only to track the execution unnecessarily, is not acceptable.

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7. In view of such, this Petition is liable to be and is hereby dismissed with a cost of Rs.1,000/- to be paid before the High Court Legal Services

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Committee within 15 days from the date of receipt of copy of this order.

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8. Let a copy of this order be sent to the Secretary, High Court Legal Services Committee.

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Sd/-

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(Deepak Kumar Tiwari)