Gujarat High Court
Nitin Chandrakant Gajjar vs Nareshkumar Natwarlal Modi on 4 April, 2025
NEUTRAL CITATION
C/SA/126/2025 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 126 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SECOND APPEAL NO. 126 of 2025
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NITIN CHANDRAKANT GAJJAR & ANR.
Versus
NARESHKUMAR NATWARLAL MODI & ORS.
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Appearance:
MR. AADIT R SANJANWALA(9918) for the Appellant(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 1
REFUSED SERVED (N)(10) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
1. The present second appeal has been filed under the provisions of Section 100 of the Code of Civil Procedure, 1908 ('the Code' for short) being aggrieved by the order dated 03.03.2025 passed by the 2nd Additional District Judge, Surat in Regular Civil Appeal No.8 of 2024.
2. For the sake of brevity, the parties are referred to as per their original status before the appellate Court in Regular Civil Appeal No.8 of 2024 filed under the provisions of Order XXI Rule 103 of the Code as their objection submitted in Execution Petition No.15 of 2001 was dismissed by Court vide order dated 19.12.2023. Page 1 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025
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3. The brief facts arising in the present second appeal are that; 3.1 The father of respondent No.1 viz. late Natwarlal modi had filed Arbitration Suit No.443 of 1982 against Yogi Krupa Cooperative Housing Society Ltd., before the Joint Registrar and the Board of Nominees of Cooperative Society Surat, Division, Surat, Vide an award dated 08.03.1988, partly allowed the said Arbitration Suit No.443 of 1982 and the father of the respondent No.1, i.e. the plaintiff of Arbitration Suit No.443 of 1982 was declared owner of property having Block No.41 of Yogi Krupa Cooperative Housing Society Ltd. By the said order, the defendant of said suit were restrained to transfer or assign the said Block No.41 and were also directed to allot the said block to respondent no.1. 3.2 Though the said award is passed on 08.03.1988, the respondent No.1 is unable to execute and reap its fruit for years together. The execution proceedings are pending since the year 2001 as the present appellant had filed obstruction in the execution proceedings by way of claiming that the appellants have purchased the property in the year 1981, and it is the case of the appellants that their predecessor-in-title were also put in possession of the suit property in the year 1981 and the predecessor-in-title had become shareholder and member of the society and thereby the present appellant objected to the execution proceedings. 3.3 As earlier an order was passed below Exh. 1 in Execution Petition Page 2 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined No.15 of 2001, dated 06.12.2017, the said order was challenged before this court by way of filing Special Civil Application No.4756 of 2018, wherein while disposing the said Special Civil Application by an order dated 28.01.2020, the Coordinate Bench had quashed and set aside the order dated 06.12.2017 and directed the Executing Court to hear the decree holder as well as the objector and to follow the procedure as envisaged under Order XXI Rule 97 of the Code. The coordinate Bench of this Court had also given liberty to Executing Court of hearing the decree holder as well as the objection of the appellant and also to lead evidence, and even had given an opportunity to the objections to give a detailed objection in the Execution Petition No.15 of 2001. Thereafter, the Executing Court passed an order dated 19.12.2023 rejecting the objections filed by the appellants and directed the objectors to handover the peaceful and vacant possession of the property to respondent no.1. 3.4 Being aggrieved by the said order passed by the Executing Court, Regular Civil Appeal No.8 of 2024 was filed wherein by an order dated 3.3.2025 the said appeal has been dismissed. Being aggrieved by the said order, the present Second Appeal has been filed. 4 Learned senior advocate Mr.Rashesh Sanjanwala with learned Advocate Mr.Aadit Sanjanwala has mainly argued that the order passed Page 3 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined by the Executing Court is contrary to settled legal principles relating to Execution under Order XXI of the Code. It has also been argued that the award that has been passed in arbitration proceedings is with respect to allotment of the suit property to respondent No.1 and the said award does not grant possession of the disputed property to respondent No.1. Moreover, it has also been argued that the possession of the suit property was always with the present appellants and there is neither any decree nor an award is passed directing the applicants to handover the peaceful and vacant possession of the disputed property to respondent No.1. 4.1 Learned senior advocate Mr. Sanjanwala has also argued that the separate suit had to be filed by respondent No.1 to get the possession of the disputed property from the appellants and the same could not have been granted by the Executing Court. The learned senior advocate has also argued that the Executing Court could not have gone beyond the award, which has been passed in Arbitration Suit No.443 of 1982. The said award is only with respect to respondent No.1 being an allottee of Yogi Krupa Cooperative Society. Learned senior advocate has also argued that once the order under Order XXI Rule 36 of the Code is executed, the question of handing over physical possession of the disputed property would not arise.
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NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined 4.2 It has also been argued that after the matter was remanded back by the High Court by an order dated 28.01.2020 passed in Special Civil Application No.4756 of 2018, the Executing Court did not frame issues and no oral evidence was led before the Executing Court and therefore also the said order is required to be quashed and set aside. Therefore, in view of the substantial questions of law that are suggested in the memo of appeal, the present second appeal be admitted and the order passed by the Executing Court in Execution Petition No.15 of 2001 and the order passed by the first appellate court dated 03.03.2025 in Regular Civil Appeal No.8 of 2024 be stayed.
5. Having heard learned senior Advocate for the appellants, the relevant provisions of the Code are required to be considered, which this Court apt to reproduce hereinunder for ready reference. Section 47 reads as follows:
47. Questions to be determined by the Court executing decree.
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be Page 5 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined determined by the Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation 1.-- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-- (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section." Order XXI, Rule 35 reads as follows:
"35. Decree for immovable property.-
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be Page 6 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming the beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession."
Order XXI, Rule 97 reads as follows:
97. Resistance or obstruction to possession of immovable property:-
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NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate the upon the application in accordance with the provisions herein contained."
Order XXI, Rule 98 reads as follows:
98. Orders after adjudication.
(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-Page 8 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025
NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."
Order XXI, Rule 99 reads as follows:
"99. Dispossession by decree-holder or purchaser :-
(1) Where any person other than the judgment-
debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." Order XXI, Rule 100 reads as follows:
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NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined "100. Order to be passed upon application complaining of dispossession.
Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit."
Order XXI, Rule 101 reads as follows:
"101. Question to be determined:-
All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."Page 10 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025
NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined Order XXI, Rule 103 reads as follows:
"103. Orders to be treated as decrees. Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."
5.1 Therefore, in the present case, the objection that has been taken by the appellant are under the provisions of Order XXI Rule 97 of the Code, as the obstruction application is filed in the execution proceedings the said decree could not be executed in the normal manner by obtaining warrant for possession under Order XXI rule 35 of the Code and, therefore, for removal of such obstruction, the provisions of Order XXI Rule 97 of the Code need to be considered by the Executing Court, and it is only after hearing the appellants the Executing Court found that the resistance and obstruction was occasioned without just cause by the appellant and the said obstruction was removed as per provisions of Order XXI Rule 98 of the Code. While deciding the objection, all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an Page 11 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined application under Order XXI Rule 97 of the Code has to be determined by the Court dealing with the application. The Executing Court, while deciding the said application is required to hold full fledged inquiry to determine all questions more particularly as stated in Order XXI Rule 101 of the Code.
5.2 While deciding an application under Order XXI Rule 97 of the Code, the Executing Court decides all the disputes between the party and if there is an obstruction and resistance to possession of the property, the same can be decided and adjudicated by the very Executing Court and a separate suit is not required to be filed by the decree holder.
5.3 In the present case, the Executing Court has considered all relevant material on record. The Court has also taken into consideration the objections filed by the appellants. The Executing Court, while deciding the objections of the appellants, has also taken into consideration the Civil Suit No.685 of 2005 filed by the objectors herein. In the said civil suit, the appellants had sought for a relief to declare the appellant to be the owner of the disputed property and restrain the respondent from causing any obstruction, hindrance to the peaceful possession of the said suit of the disputed property and restraining respondent No.1 Page 12 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined from taking the peaceful possession of the suit property. In the proceedings of Execution Petition No.15 of 2001, the trial court framed following issues vide Exhibit:-95 "(1) Whether the plaintiff proves that the suit property has been inherited by the plaintiff and the plaintiff is in possession of the suit property being heirs of Chunilal Nathulal Gajjar i.e. the grandfather of plaintiff no.2 from the date of purchase of the disputed property on 11.10.1981 and after the death of grandfather of the plaintiff no.2 ? (2) Whether the plaintiff proves that defednant has got decree in Execution Petition No.443 of 1992 in his favour fradulently?
(3) Whether the plaintiff have paid necessary court fees stamp?
(4) Whether the plaintiff is entitled to the reliefs as prayed for by him in the suit?
(5) What is the judgment and decree?"
And after giving finding on all the issues and after taking into consideration the oral evidence of the parties to the suit, the civil suit filed by the appellants herein is dismissed. Therefore, the disputes and the claim of the objectors has been adjudicated by a separate suit and the same is also taken into consideration by the Executing Court while deciding the objection filed by the appellant. The Executing Court, while Page 13 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined adjudicating the disputes, has also taken into consideration the fact of the claim of objectors having purchased the property. The Court has also taken into consideration the right of the objectors with respect to their ownership in the disputed property. The court has also taken into consideration the interest of the objectors in the suit property and after determining all the rights of the objectors, the Court has passed the order. 5.4 Moreover, the objections that were filed by the appellants herein were also required to be rejected as the said claim of the objectors has already been adjudicated in the Civil Suit filed by the objectors wherein also the issue which has been raised in the present execution has been adjudicated and determined by the trial court and therefore also, the objections in the present execution proceedings are filed without any substance and in a mechanical manner to obstruct the respondent no.1 to ensure that respondent no.1 is unable to reap the fruits of the decree and, therefore, the same has rightly been rejected by the Executing Court and confirmed by the Appellate Court.
5.5 The Executing Court has considered the averments made in the application filed by the appellants. While deciding an application under section 47 read with Order XXI Rule 101 of the Code, the court has to Page 14 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined decide all questions relating to right, title or interest in the disputed property.
While determining a question under section 47 of the Code, the Executing Court cannot go beyond the decree and question the correctness of the same. Therefore, the issue which have been raised by the parties during the adjudication of the suit cannot be determined by the Executing Court as such adjudication may undermine the decree. 5.6 In this regard, the judgement reported in 2025 Livelaw SC 293, will be of assistance more particularly paras no.62, 63 and 68 of the said judgment.
"62. A harmonious reading of Section 47 with Order XXI Rule 101 implies that questions relating to right, title or interest in a decretal property must be related to the execution, discharge or satisfaction of the decree. The import of such a reading of the provisions is that only matters arising subsequent to the passing of the decree can be determined by an executing court under Section 47 and Order XXI Rule 101. Such reasoning is reinforced by the decisions of this Court in C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1 SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Page 15 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined Rehman reported in (1970) 1 SCC 670, wherein it has been held that while determining a question under Section 47, an executing court cannot go behind the decree and question the correctness of the same.
63. What flows from the position of law, as afore stated, is that the issues that ought to have been raised by the parties during the adjudication of the original suit cannot be determined by the executing court as such adjudication may undermine the decree itself. This Court in Rahul S. Shah v. Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 has held that the benefit of Section 47 cannot be availed to conduct a retrial causing failure of realisation of fruits of the decree. The relevant portion of the judgment is reproduced below:
"24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure Page 16 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree.
However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to.Page 17 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025
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26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the courts first issue show-cause notice asking the judgment-
debtor as to why the decree should not be executed as is given under Order 21 Rule 22 for certain class of cases.
However, this is often misconstrued as the beginning of a new trial. For example, the judgment-debtor sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral plea, which invariably leaves no option with the court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.
27. This is antithesis to the scheme of the Civil Procedure Code, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Order 1 and Order 2 which relate to parties to suits and frame of suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common Page 18 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined questions of law and facts could be decided at one go."
(Emphasis supplied)
68. In our considered view, the aforesaid by no stretch of imagination can be construed to be a legal right of possession existing independently from the title of the vendors which has now stood transferred to the appellants. It is nothing but a case of apparent collusion between the vendors and the respondent Nos. 1 and 2 to deprive the appellants from availing the fruits of the decree in their favour."
6. In the present case, the independent claim of the appellants have already been decided in Regular Civil Suit No.685 of 2005 and the Executing Court also has taken into consideration all the objections while deciding the Execution Petition No.15 of 2001 and therefore, there cannot be a re-trial of the adjudication that has already been taken place by the Executing Court and in Regular Civil Suit No. 685 of 2001. If the same is permitted it will be causing a failure of realisation of fruits of the decree in favour of respondent No.1. Moreover, the provisions of section 47 of Code is intended to prevent multiplicity of proceeding. Page 19 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025
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7. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
8. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except Page 20 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025 NEUTRAL CITATION C/SA/126/2025 ORDER DATED: 04/04/2025 undefined in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
9. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.
10. In view of the dismissal of the main Second Appeal, the Civil Application does not survive and the same is accordingly disposed of.
(SANJEEV J.THAKER,J) URIL RANA Page 21 of 21 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 22:43:33 IST 2025