Gujarat High Court
Jasvantbhai S/O Chhaganbhai ... vs Ushaben W/O Jivanbhai Bavjibhai D/O ... on 30 January, 2025
NEUTRAL CITATION
C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17535 of 2024
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 17535 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
Yes
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JASVANTBHAI S/O CHHAGANBHAI PARBHUBHAI PATEL SINCE DECD
THROUGH HEIRS & ORS.
Versus
USHABEN W/O JIVANBHAI BAVJIBHAI D/O CHHAGANBHAI PARBHUBHAI
PATEL & ORS.
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Appearance:
MR MANAN B PANDYA(12491) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MR ARPIT A KAPADIA(3974) for the Respondent(s) No. 1.1,1.2,1.3,1.4
UNSERVED EXPIRED (N) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/01/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. S.P. Majmudar with learned advocate Mr. Manan B. Pandya for the petitioners and learned advocate Mr. Arpit A. Kapadia for respondent Nos. 1.1 to 1.4.
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2. Respondents Nos. 2 & 3 are reported to unserved expired but their presence are not required to adjudicate the controversy involved in the present petition.
3. The present petition is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of Certiorari and or any other appropriate writ, order or directions quashing and setting aside the impugned orders dated 18.11.2024 below application Exh.52 and 55 (ANNEXURE L to the present petition) as well as order dated 28.06.2024 below Exhibit 30 and 35 (ANNEXURE J to the present petition) passed by learned 4th Additional Civil Judge, Surat in Regular Execution no. 3 of 2018, in the interest of justice;
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, execution and implementation of the impugned orders dated 18.11.2024 below application Exh.52 and 55 (ANNEXURE L to the present petition) as well as order dated 28.06.2024 below Exhibit 30 and 35 (ANNEXURE to the present petition) in Regular Execution no. 3 of 2018 as well as stay further proceedings of Regular Execution no. 3 of 2018 pending before the learned 4th Additional Civil Judge, Surat, in the interest of justice;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
4. The short fact which are necessitate for adjudication and for resolving the controversy involved in the petition as Page 2 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined under :-
4.1 The present petitioners are legal heirs of one Jasvantbhai S/o Chhaganbhai Prabhubhai Patel and respondent Nos. 1.1 to 1.4 are legal heirs of one Ushaben D/ o Chhaganbhai Prabhubhai Patel.
4.2 Late Ushaben D/o Chhaganbhai Prabhubhai Patel had filed Regular Civil Suit No. 142 of 2012 before the Principal Senior Civil Judge, Surat against one Narmadaben w/o Chhaganbhai Prabhubhai Patel (mother of plaintiff), Jasvantbhai S/o Chhaganbhai Prabhubhai Patel (brother of plaintiff) and Niruben D/o Chhaganbhai Prabhubhai Patel (sister of plaintiff) thereby seeking declaration and injunction as prayed for in the suit.
4.3 The parties to the aforesaid suit appears to have entered into a compromise thereby compromise decree was passed by the trial Court wherein one term which is so recorded and agreed between the parties was in relation to the property which is subject matter of the controversy at hand.
4.4 As per the consent terms more particularly para-5 states that Ushaben being a plaintiff has given a joint right in the property situated at Kalpana Society, Bungalow No. Page 3 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined B/79, which was originally stood in the name of Narmadaben (mother of the plaintiff) and it has been clearly stated that undivided share of plaintiff is accepted in the said property and that undivided share will be enjoyed by the plaintiffs jointly with others. Thus, on agreed terms, the consent decree was passed by the civil court.
4.5 The legal heirs of Ushaben i.e. respondent Nos. 1.1 to 1.4 herein appears to have filed Regular Execution Petition No. 3 of 2018 against the defendants of the aforesaid suit claiming thereby execution of compromise decree which was passed by the Court concerned at the relevant point of time.
4.6 The predecessor of the present petitioners i.e. Jasvantbhai having raised several objections to the maintainability of such Execution Petition, which came to be decided and turned down by the Executing Court vide its order dated 16.12.2019 which is produced at Annexure-E to this petition.
4.7 The Executing Court in clear terms has observed that all the objections so raised by Jasvantbhai- predecessor of the present petitioners are turn down and Execution Petition will be proceeded further. It requires to be observed that the said order has attained finality having not challenged by Page 4 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined Jasvantbhai during his life time and even not challenged by his successor i.e. present petitioners.
4.8 It further appears that during the pendency of the aforesaid Execution Petition, an application at Exh. 17 was filed by respondent Nos. 1.1 to 1.4 herein on 09.11.2020, thereby they have prayed to the Executing Court that the defendants be removed from suit property by appointing Bailiff of the Court. Such application came to be rejected by the Executing Court vide its order dated 03.01.2022. The Executing Court was of the opinion that consent decree would not suggest eviction of defendants out of the aforesaid property then prayer made to that effect in Exh.17 has been rejected.
4.9 It further appears that the respondent Nos. 1.1 to 1.4 -
successor of plaintiff- Ushaban again filed similar application below Exh. 28 on 13.11.2021 seeking identical relief which they have already prayed and rejected in their application filed below Exh. 17.
4.10 It appears that Executing Court has rejected the said application by observing that in view of the order passed below Exh.17, present application is not maintainable, hence rejected.
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4.12 It is to be noted that Rekhaben wd/o Jasvantbhai i.e. petitioner No.1.1 herein in her individual capacity to join in execution proceedings filed application which was initially allowed by the Executing Court below Exh. 19 vide its order dated 04.02.2021. She had file such application on strength of Gift Deed executed by Narmadaben (defendant no.1) in here favour thereby gifted the aforesaid property in question. Nonetheless, respondent Nos. 1.1 to 1.4 came to challenged said order before the District Court which has allowed their appeal on 09.09.2021thereby quashed the order dated 04-02-2021 passed by the Executing Court joined Rekhaben. It is undisputed that none has challenged the order of District Court.
4.13 Later on, it appears that respondent Nos. 1.1 to 1.4 had filed an application below Exh. 30 on 21.01.2022 thereby prayed to the Executing Court that the applicants- successor of the decree holder - Ushaben are not allowed to enjoy the aforesaid property by the defendants, then help of Page 6 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined the Bailiff and Police, the applicants - successor of decree holder - respondent Nos. 1.1 to 1.4 be allowed to use and reside in the aforesaid property.
4.14 It further appears that pending such application, an application came to be filed by respondent Nos. 1.1 to 1.4 below Exh. 35 on 01.09.2022 thereby again a similar request has been reiterated.
4.15 The petitioners herein appears to have opposed both the applications on several grounds which are raised in the reply below Exh. 37.
4.16 After hearing the parties at length, the Executing Court vide its impugned order dated 28.06.2024 passed below Exh. 30 & 35 respectively turn down such objections of the petitioners and further held that the Executing Court will proceed further with the execution.
4.17 As nothing has been moved further, the respondent Nos. 1.1 to 1.4 have again filed an application below Exh. 52 & 55 seeking similar relief as prayed in the application below Exh. 30 & 35 thereby again requested the Executing Court to give protection to the applicants and allow them to enter into the aforesaid property, thereby Page 7 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined they can use the aforesaid properties as per consent terms.
4.18 After hearing the parties and again taking into account of their objections, vide its impugned order dated 18.11.2024, the Executing Court has allowed those applications, thereby hold that all objections which are raised by the petitioners herein are not maintainable and Bailiff shall execute the order.
4.19 At this stage, the petitioners have preferred the present petition filed on 20.12.2024 thereby challenged order dated 28.06.2024 passed below Exh. 30 & 35 respectively and dated 18.11.2024 passed below Exh. 52 & 55 respectively.
4.20 After hearing the learned advocates for the petitioners, the Co-ordinate Bench of Court vide its order dated 24.12.2024 granted ad-interim relief in favour of the petitioners thereby the orders impugned in the petition are stayed.
Submission of the learned advocate for the petitioners - successor of original defendant No.2
5. Learned advocate Mr. S.P. Majmudar for the petitioners Page 8 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined has vehemently submitted that the impugned orders which are passed by the Executing Court are erroneous and contrary to the provisions of law, in as much as the Executing Court has never appreciated one legal aspect which goes to the root of the matter i.e. principle of Res-judicata.
5.1 He would further submit that when earlier two applications of respondent Nos. 1.1 to 1.4 herein i.e. Exh. 17 & 28 came to be rejected in earlier stage of proceeding, the subsequent applications which are filed as Exh. 30, 35, 52 & 55 would not be maintainable as barred by principle of Constructive Res-judicata.
5.2 Learned advocate for the petitioners would further submit that as per the consent decree there is declaratory decree has been passed in favour of late Ushaben, who happens to be daughter of defendant No.1- Narmadaben in whose name the aforesaid property was stood. There is no relief so far as joint possession has been given and or agreed between the parties. So, when such right of enjoyment of property is not expressly agreed between the parties, the Executing Court can not go beyond the decree.
5.3 Learned advocate Mr. Majmudar for the petitioners would further submit that if the respondent Nos. 1.1 to 1.4 Page 9 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined i.e. legal heirs of late Ushaben - plaintiff wants to get possession of the aforesaid property, they have to file suit for partition and after passing any decree by the Competent Court in such suit for partition, thereby the aforesaid property may be divided in metes and bounds, and thereafter, the respondent Nos. 1.1 to 1.4 can get possession of the aforesaid property. According to his submission, without appreciating the aforesaid aspect of the matter, the Executing Court has wrongly turned down the legal objections so raised by the petitioners, thereby committed gross irregularity, illegality and so it has exceeded his jurisdiction by go beyond the decree.
5.4 Lastly, learned advocate for the petitioners would candidly submit that though the contention which is now going to be raised by him was never press into service before the Executing Court at any point of time and also not raised in the present petition but according to him, being a question of law, he may be permitted to raise it for the first time before this Court. Learned advocate for the petitioners would submit that as per the provisions of Section 17 sub section 2 read with Section 49 of the Registration Act, such compromise decree wherein rights in the immovable property has been created then to get the fruits of such compromise decree and or for any relief flowing therefrom, Page 10 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined such decree is required to be compulsory registered, failing which, the Executing Court can not execute such decree as according to him, aforesaid property was not the subject matter of suit albeit, covered under compromised terms resulted into compromise decree.
5.5 Making the above submission, learned advocate for the petitioners would urge to this Court to allow the present petition by quashing and setting aside the impugned orders passed by the Executing Court.
5.6 No such other and further submission are made by the learned advocate for the petitioners.
Submission of the learned advocate for the respondent Nos. 1.1 to 1.4 - successor of plaintiff.
6. At the outset, learned advocate Mr. Arpit Kapadia for respondent Nos. 1.1 to 1.4 - successor of original plaintiff- Ushaben has vehemently opposed the present petition and pointed out that there is suppression of material facts by the petitioners while coming to this Court by way of filing the present petition. The petitioners have not disclosed that the application filed by Rekhaben wd/o Jasvantbhai i.e. petitioner No.1.1 herein in her individual capacity to join in Page 11 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined execution proceedings which initially allowed by the Executing Court below Exh. 19 vide its order dated 04.02.2021 which ultimately came to be rejected by the District Court by allowing the appeal of respondent Nos. 1.1 to 1.4 on 09.09.2021. So, claim of Rekhaben to have exclusive ownership of aforesaid property is not accepted thereby not allowed to be joined in her individual capacity in Execution, such vital fact has not been disclosed in the petition. According to him, when the petitioners are not coming with the clean hand and not disclosed true and correct facts thereby mislead this Court on a complete different issues not germane in the proceedings, the present petition requires to be dismissed with heavy costs. Those applications and orders passed thereon are submitted with the separate application filed by them for vacating ad-interim relief in the present petition.
6.1 Learned advocate Mr. Arpit Kapadia has submitted that the petitioners have secured the ad-interim relief in their favour by not placing all relevant facts and the orders passed by the Executing Court and the Appellate Court as the case may be. He would request that on this sole ground alone, the present petition may not be entertained by this Court.
6.2 Learned advocate Mr. Arpit Kapadia would submit that Page 12 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined at the relevant point of time, the predecessor of the petitioners namely Jasvantbhai who happens to be the defendant No.2 in the aforesaid suit had raised all the objections/contentions, which were available to him in the Execution Petition filed by respondent Nos. 1.1 to 1.4. After appreciating all such objections/contentions, vide its order dated 16.12.2019, the Executing Court has turned down all such objections and ordered to proceed further with the execution. According to the Learned advocate Mr. Arpit Kapadia that once the objections which were so raised by the predecessor of the petitioners and already answered negatively against him, then after having not challenged the said order, at this stage, no contentions / objections would be available to the present petitioners to object any of the applications which were filed by the respondent Nos. 1.1 to 1.4 and in fact they would be barred by principle of Constructive Res-Judicata.
6.3 Learned advocate Mr. Arpit Kapadia would further submit that the petitioners being successor of original defendant No.2 - Jasvantbhai, who during his life time if failed to raise objections now his legal heirs being the present petitioners are raising, they can not be allowed to raise any more objections which could have been raised by their predecessor namely Jasvantbhai.
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6.5 Learned advocate Mr. Arpit Kapadia would also reply upon the decision of Hon'ble the Apex Court in the case of Barkat Ali and another Vs. Badrinarain (dead) by Lrs. reported in (2008) 4 SCC 615, (Para- 5 & 13).
6.6 Learned advocate Mr. Arpit Kapadia would further submit that it is misconceived notion on the part of the petitioners thereby to contend that having lost in their application filed below Exh. 17 & 28 respectively, the respondent Nos. 1.1 to 1.4 are barred in filing subsequent applications below Exh. 30, 35, 52 & 55 respectively. He would respectfully submit that the prayers which were made in application below Exh. 17 & 28 are completely different than the applications which were filed later in point of time below Exh. 30, 35, 52 & 55. He would submit that in the application below Exh. 17 & 28, unmindful of fact, the respondent Nos. 1.1 to 1.4 had requested eviction of the defendants which was not part of the consent decree.
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6.7 Lastly, he would submit that even after passing the consent decree and several rounds of applications got over but till today, the respondent Nos. 1.1 to 1.4 being legal heirs of original plaintiff - Ushaben are enable to enjoy the fruits of the consent decree. According to him, by all means, the petitioners have tried to obstruct and come in the way of respondent Nos. 1.1 to 1.4 thereby not allow to enjoy the aforesaid property.
6.8 So, he would submit that the separate Civil Application which is filed by the respondent Nos. 1.1 to 1.4 may be allowed and the present petition may be dismissed with costs as having no merits.
6.9 No other and further submission are made by the learned advocate for the petitioners.
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7. Before adverting to the issue involved in the matter, I would to remind myself scope and power available to this Court while exercising its power under Article 227 of the Constitution of India which is succinctly discussed in following two decisions of Honourable Supreme Court of India. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Page 16 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is Page 17 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
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(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
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(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article
227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
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(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
Emphasized supplied.
7.1 The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of Page 21 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court.
The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."
Emphasized supplied.
8. At the outset, it is required to be taken note one fact Page 22 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined that the decree which is sought to be executed is the consent decree which was passed by the Competent Court as per the agreement arrived at between the parties, who happens to be family members. As noted herein above, the original plaintiff- Ushaben happens to be daughter of Chhaganbhai Prabhubhai Patel and defendant No.1 - Narmadaben happens to be mother of Ushaben and defendant No.2 Jasvantbhai happens to be brother of Ushaben and Niruben happens to be sister of Ushaben have jointly agreed to the terms whereby the right of plaintiff in the aforesaid property has been recognized albeit, jointly and thereby observed that she can enjoy such joint right in the aforesaid property.
8.1 With the aforesaid consent terms agreed between the parties and having received consent decree, it was expected that the defendants to allow Ushaben and her successor to enjoy joint ownership of the aforesaid property. It appears from the record that successor of Ushaben i.e. respondent Nos. 1.1 to 1.4 were not allowed to enjoy such joint right even though clearly stated in the decree. So, they are compel to file the aforesaid execution petition.
8.2 At the relevant point of time, having so observed hereinabove, defendant No.2 i.e. Jasvantbhai who happens Page 23 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined to be predecessor of the present petitioners have objected such execution on all possible counts available to him. After hearing all the parties concerned, the Executing Court had turned down such objections vide order dated 16.12.2019. Thus, the objections which were raised by the predecessor of the petitioners were considered by the Executing Court and such order has become final and having not challenged by anyone.
8.3 If it be so, later on, the petitioners being successor of Jasvantbhai can not be allowed to raise any more plea/objections which was available to their predecessor but either raised and rejected and or not raised in the subsequent proceeding of Execution. In facts of the present case, the submissions which are canvassed by the learned advocate Mr. Majmudar for the petitioners in regards to the principle of res-judicata / constructive res-judicata would rather go counter to the petitioners' argument as they are estopped in law to raise such objections in the impugned application filed by the respondent Nos. 1.1 to 1.4, i.e. application below Exh. 33, 35, 52 & 55 as their predecessor had already lost in the earlier round of proceedings.
8.4 At this juncture, it is apposite to take note of that the principle laid down by the Hon'ble Apex Court in the case of Page 24 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined Barkat Ali (Supra), more particularly in Para- 5 & 13, which is reproduced herein above reads as under :-
"5. The executing court found that since after completing preliminaries of h issuing notice and finding that no objection has been filed in spite of the service under Order 21 Rule 22 of the Code of Civil Procedure, 1908 (in short "CPC") and the court had proceeded to next stage of execution for attaching the property under Order 21 Rules 23 and 24 CPC, any objection raised subsequent thereto cannot be entertained being barred by principles of constructive res judicata. Against the dismissal of the objections dated 16-11-1972 by order dated 13-7-1974, an appeal was preferred before the High Court which has been dismissed by the learned Single Judge by judgment dated 16-1- 1981. The learned Single Judge found that the objections filed on 16-11-1972, after the warrant, of attachment was issued, could not be entertained by the executing court as the same was barred by principles of constructive res judicata. Ancillary issues raised by the learned counsel for the appellant were also found to be not sustainable and the appeal was dismissed. xxxxxxxxxxxx
13. The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage."
Emphasized supplied.
8.5 Likewise, this Court in the case of Ganchi Laxmichand Ambaram (supra) wherein (Hon'ble Mr. Justice P.N. Bhagwati, His Lordship then was) after appreciating the principle laid down by the privy council held thus in para- 9, Page 25 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined 10, 11 & 12, which is also reproduced as under :-
"9. The Privy Council thus applied the principle of constructive res judicata in execution proceeding without any qualification or reservation. The reason which commended itself to the Privy Council for the application of the principle of constructive res judicata was that if a party does not through his own default raise whatever plea he can in a previous proceeding, he cannot be permitted to raise the same plea in a subsequent proceeding merely because he neglected at the proper stage in the previous proceeding to raise the plea of which he subsequently wants to avail himself. Now this reason would apply equally whether the party appears at the hearing of the previous proceedings and omits to raise a certain plea or whether the party does not appear at the hearing of the previous proceeding and, therefore, does not raise the plea. I am, therefore of the opinion that according to this decision of the Privy Council the principle of constructive res judicata must apply to the execution proceeding without any qualification of reservation such as the one laid down by the High Court of Bombay in 45 Bom LR 519: (AIR 1943 Bom 252) (supra), provided of course that the requisite conditions for the applicability of the principle are satisfied.
10. The Supreme Court has also laid down in clear and unmistakable terms in Mohanlal v. Benoy Krishna, (1952) 2 SCC 648: AIR 1953 SC 65 that the principle of constructive res judicata applies to execution proceedings. As observed by Ghulam Hasan, J., in that case "that the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. See Ananda Kumar v. Sheikh Madan, 38 Cal W.N. 141: (AIR 1934 Cal 472) and 'Mahadeo Prasad v. Bhagwat Narain Singh', AIR 1938 Pat 427."
11. Having regard to these decisions of the Privy Council and the Supreme Court, I must refuse to follow the decision of the High Court of Bombay in 45 Bom LR 519 (AIR 1943 Bom 252) (supra) even though that is a decision of a Division Bench of the Page 26 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined Bombay High Court.
12. I, therefore, take the view that if the necessary conditions are satisfied the principle of constructive res judicata applies to execution proceedings in all cases without any discretion in the Court whether or not to apply the same having regard to the facts and circumstances of a particular case. This being the position it is clear that the executing Court having made the order on the notice under Order XXI, Rule 22, directing issue of warrant for attachment, it was not open to the applicant to raise at a subsequent stage of the proceedings any conditions against the execution of the decree."
Emphasized supplied.
8.6 In view of the ratio of aforesaid decisions, it is very much clear that principle of res-judicata / constructive res- judicata would be applicable in the execution proceedings.
8.7 So, I am of the view that once the predecessor of the petitioners lost before the Executing Court when raised obstructions / objections in the execution petition and all such objections turn down by Executing Court vide its the order dated 16.12.2019 having not challenged by anyone became final, nothing left to be raised by the petitioners being successor in the interest of defendant No.2. If it be so, the question of raising their recent objections during adjudication of application below Exh. 33, 35, 52 & 55 would pale into insignificant having not pressed such plea at relevant point of time and in view of the aforesaid Page 27 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined pronouncement by this Court in the case of Ganchi Laxmichand Ambaram (supra) applying the principle of constructive res-judicata, the petitioners could not have been allowed to raise such a plea, which was not taken by their predecessor at the relevant point of time.
8.8 Having so observed and come to the conclusion that objections which are raised by the petitioners in the execution proceedings in the aforesaid impugned applications are misconceived in law and could not have been raised and no need to be adjudicated upon. So far as question of applicability of res-judicata / constructive res- judicata would not apply against respondent Nos. 1.1 to 1.4 when their earlier applications which were rejected by the Executing Court below Exh. 17 & 28 as reliefs prayed in those applications are not similar to impugned applications @ Exh. 33, 35, 52 & 55.
8.9 It is worth to note here that those applications filed below Exh. 17 & 28 by the respondent Nos. 1.1 to 1.4 herein were claiming completely different reliefs than the reliefs which were prayed in the impugned applications filed below Exh. 33, 35, 52 & 55 as recorded hereinabove then the principle of res- judicata / constructive res-judicata would not be applied at all.
Page 28 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined 8.10 So, on both these counts, the arguments raised by the learned advocate Mr. S.P. Majmudar for the petitioners has no legs to stand and failed having no substance in law.
8.11 As far as another limb of argument that consent decree in question is declared only decree in favour of Ushaben and unless and until her successor i.e. respondent Nos. 1.1 to 1.4 filed a partition suit, they can not be allowed to enter into the aforesaid property, is misconceived notion on the part of the objectors. When the predecessor of the petitioners have already raised all the objections which were to be raised and already decided by the Executing Court and turned down those objections, later in point of time, as per aforesaid law, no new plea can be allowed to be raised at the hands of his successor's i.e. present petitioners. Moreover, prima-facie reading of consent decree would also indicate that not only the declaration about the right of Ushaben has been accepted between the parties but she was allowed to enjoy the aforesaid property albeit, with jointly with other co-sharer of the aforesaid property. If someone has given right to enjoy the immovable property then without getting possession, how it would enjoy it.
8.12 Thus, the aforesaid limb of argument is also not Page 29 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined sustainable in law, as it barred by res-judicata / constructive res-judicata as well as wrong interpretation of consent decree at the hands of the objectors / petitioners.
8.13 Lastly, a plea which is now raised for the first time during course of hearing by the learned advocate Mr. Majmudar for the petitioners in regards to non-registration of consent decree, having fairly accepting that such a plea was never raised either before the Executing Court nor pleaded in the present petition, I am of the view that such a plea can not be considered while exercising power under Article 227 of the Constitution of India as well as on the principle of constructive res-judicata as held by this Court in the case of Ganchi Laxmichand Ambaram (supra), so such last limb of argument made by the learned advocate for the petitioners is also requires to be turned down.
8.14 As, this Court is not at all impressed with any of the submissions which are made by the learned advocate for the petitioners, at this stage, learned advocate Mr. Kapadia for the respondent Nos. 1.1 to 1.4 states that he would not much press his submission about suppression of material facts by the petitioners but reserve his/ their right to be agitated in appropriate proceedings, before appropriate higher forum, if so required. Therefore, in view of the Page 30 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined aforesaid fact, I am not going to examine such aspect of suppression of material fact so raised in the Civil Application filed by respondent Nos. 1.1 to 1.4.
8.15 Considering the aforesaid facts and circumstances and scope and power of this Court while exercising the power under Article 227 of the Constitution of India and keeping in mind the ratio of aforesaid decisions, the present petition is not required to be entertained by this Court as it lacks merit.
CONCLUSION.
9. After appreciating entire set of events and going through all orders which are passed by the Executing Court, I am of the view that the objections which are raised by the present petitioners objecting prayer made in below Exh. 33, 35, 52 & 55 are frivolous, unsustainable, barred by principle of res-judicata/ constructive res-judicata and having not maintainable in the law. There is no error found in any of the impugned orders.
9.1 In view of above, I am of the view that there is no gross error much less in jurisdictional error committed by the Executing Court while passing the impugned orders which would not requires any interference by this Court while Page 31 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined exercising its power under Article 227 of the Constitution of India. Thus, there is no merit in the present petition, the present petition requires to be dismissed.
9.2 Ad-interim relief granted earlier by this Court stands vacated forthwith.
10. While parting with the judgement, it would like to observe by this Court that Executing Court is required to execute the decree, once the objections raised by the objector at first instances decided by it against the objectors then, the Executing Court ought to have proceed further with the execution, thereby an endeavor to be made by the Executing Court to see that decree holders gets the fruits of decree. The present is a case wherein the predicament of a decree holder has been experienced by this Court thereby several applications have to be filed by them to get realize the fruits of the decree. It would indicate that Executing Court is not able to smoothly function but tangle around all sorts of frivolous objections coming from any quarter which ultimately delay execution of decree. So, it is requested to the Executing Court that in such type of cases, when all objections of all objectors, once decided and rejected, the Executing Court should not sit idle but to proceed further with the execution and to see that the execution of decree Page 32 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025 NEUTRAL CITATION C/SCA/17535/2024 JUDGMENT DATED: 30/01/2025 undefined will be satisfied at the earliest unless prohibited by the Higher Courts.
11. At this stage, learned advocate Mr. S.P. Majmudar for the petitioners request this Court to suspend this order for a period of six weeks from today, as the petitioners are desire to approach the Higher Forum.
12. Such request is vehemently objected by the learned advocate Mr. Kapadia for the respondent Nos. 1.1 to 1.4.
13. After appreciating the entire set of facts and considering the nature of controversy and observations so made hereinabove, I am not inclined to accept such prayer which is hereby rejected.
14. Thus, the petition is hereby dismissed. Notice discharge. No order as to costs. All the pending Civil Applications would not survive and disposed of accordingly.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 33 of 33 Uploaded by SALIM(HC01108) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:25:18 IST 2025