Gujarat High Court
Bharatsinh Rambha Vaghela vs Maganji Talaji Thakor on 3 July, 2025
NEUTRAL CITATION
C/SCA/8718/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8718 of 2025
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BHARATSINH RAMBHA VAGHELA & ORS.
Versus
MAGANJI TALAJI THAKOR & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/07/2025
ORAL ORDER
1. Heard learned advocate Mr.H.J.Karathiya for learned advocate Mr.S.P.Majmudar for the petitioners.
2. The present application 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 nature of appropriate or certiorari writ, a or writ in the any other order or directionsquashing and setting aside impugned order dated 05.05.2025 passed by the learned Principle Senior Civil Judge, Sirohi below Exh.1 & 39 in Regular Execution No.02 of 2016;
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be stay operation, and execution of implementation the impugned order dated 05.05.2025 passed by the learned Principle Senior Civil Judge, Sirohi below Exh.1 & 39 in Regular Execution No.02 of 2016 and further be pleased to direct the respondents herein to maintain status-quo qua the land in question;
(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;"Page 1 of 6 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:14:13 IST 2025
NEUTRAL CITATION C/SCA/8718/2025 ORDER DATED: 03/07/2025 undefined
3. At the outset, it is required to be observed that impugned order passed by Executing Court on 5 th May, 2025 in Regular Execution Application No.2 of 2016 thereby, alleged execution as prayed for whereby issued possession warrant and so also directed Registrar of the Court concerned, for registering release of mortgage deed with concerned Sub- Registrar office.
4. The only two fold contention raised by the petitioners in the present writ application to the effect that after dismissal of their appeal by the Appellate Court, they have preferred Second Appeal before this Court. which is ofcourse at the stage of delay condonation but until its final outcome, the Executing Court would not proceed further with execution.
5. Secondly, it has been pointed out by learned advocate Mr.Karathiya that in earlier point of time, when Trial Court decreed the suit in favour of respondents/ plaintiffs, as the case may be, when the execution was filed being Execution Application No.47 of 2012, which was rejected by Executing Court vide its order dated 25th September, 2023 having Page 2 of 6 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:14:13 IST 2025 NEUTRAL CITATION C/SCA/8718/2025 ORDER DATED: 03/07/2025 undefined observed that Regular Civil Appeal is pending before the Appellate Court and until its final outcome, the execution should not be proceeded in the matter.
6. So, learned advocate Mr.Karathiya would submit that such recourse ought to have been followed by Executing Court either to suspend the Execution until final outcome of appeal preferred by the petitioner or to dispose it of as the Second Appeal is pending. Having not done so, the Execution Court committed serious error. Further, the order impugned in the present writ application, if implemented, there would be an irreversible situation, which would cause great hardship and inconvenience to the petitioner.
7. Thus, in view of the aforesaid and the submissions made by learned advocate Mr.Karathiya, requested this Court to interfere in the matter.
8. I have gone through the record of the matter as well as the order impugned in the present writ application passed by Executing Court.
9. It is not in dispute that the Trial Court passed a Page 3 of 6 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:14:13 IST 2025 NEUTRAL CITATION C/SCA/8718/2025 ORDER DATED: 03/07/2025 undefined judgment and decree in favor of the plaintiffs, against which, a Regular Appeal was filed, which was not entertained by the Appellate Court and against which, Second Appeal was then preferred before this Court by Judgment debtor, which appears to have been filed in the year 2023 but currently pending at the stage of condonation of delay, as the Civil Application seeking condonation of delay in filing such Second Appeal has not yet been decided. The reasons of non-adjudication of delay application are not material and are not required to be discussed in this order.
10. Be that as it may, there is no stay granted by this Court in the Second Appeal, whereby, the judgment and decree passed by the Trial Court, which has been merged with the judgment and decree passed by the Appellate Court, the Executing Court has no other option but to execute it in accordance with law.
11. Furthermore, in view of a recent pronouncement by the Hon'ble Supreme Court in the Case of Periyamal (Dead) Through Lrs and Ors vs. V.Rajamani and Anr. in the case of Page 4 of 6 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:14:13 IST 2025 NEUTRAL CITATION C/SCA/8718/2025 ORDER DATED: 03/07/2025 undefined Civil Appeal Nos. 3640 -3642 of 2025, the Execution Applications need to be adjudicated as early as possible but within six months of their filing. Whereas, in the present case, the Execution application appears to have been filed in the year, 2016, which was pending all throughout till passing of the impugned order in May ,2025.
12. The recourse, which was adopted by the Executing Court in earlier round of litigation, when it has disposed of Regular Execution Application No. 47 of 2012 by its order dated 25th September, 2013, on the ground that Regular Civil Appeal was pending before District Court concerned, it is not made clear from the record that during the pendency of such Regular Civil Appeal, there was a stay granted against the execution of the judgment and decree passed by the Trial Court.
13. Be that as it may, such recourse might have been undertaken by Executing Court when Regular Civil Appeal was pending. Whereas, in the case on hand, the Second Appeal, which was filed by the petitioner herein is yet to be registered, as it was filed with delay application and unless Page 5 of 6 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:14:13 IST 2025 NEUTRAL CITATION C/SCA/8718/2025 ORDER DATED: 03/07/2025 undefined and until the delay is condoned by this Court, the Second Appeal will not be registered.
14. Thus, after examining both these contentions raised by the learned advocate Mr. Karathiya for the petitioner, I do not find any merit in them for the reasons stated hereinabove.
15. Thus, the upshot of the aforesaid observation, discussion, and reasons, the present writ application lacks merits and is required to be rejected, which is hereby REJECTED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 6 of 6 Uploaded by MOHD MONIS(HC01900) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:14:13 IST 2025