Gujarat High Court
Maganbhai Bhaga @ Bhagubhai Patel vs Ishwarbhai Bhaga @ Bhagubhai Patel on 8 July, 2025
NEUTRAL CITATION
C/SCA/19366/2015 ORDER DATED: 08/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19366 of 2015
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MAGANBHAI BHAGA @ BHAGUBHAI PATEL
Versus
ISHWARBHAI BHAGA @ BHAGUBHAI PATEL & ORS.
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Appearance:
MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1
MRS NASRIN N SHAIKH(2451) for the Respondent(s) No. 1,2,4
REFUSED SERVED (N)(10) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/07/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Advocate Mrs. Nasrin N. Shaikh waives service of notice of rule for the respondents. With the consent of parties, the matter is taken up for final hearing
2. Heard learned Advocate Mr. Zubin F. Bharda for the petitioner and learned Advocate Mrs. Nasrin N. Shaikh for the respondent Nos.1, 2 and 4.
3. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"A.That this Hon'ble Court may be pleased to admit this petition.
B. That this Hon'ble Court may be pleased to quash and set aside the judgment and order dated 10.08.2015 passed by the Principal Senior Page 1 of 6 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:52 IST 2025 NEUTRAL CITATION C/SCA/19366/2015 ORDER DATED: 08/07/2025 undefined Civil Judge, Gandevi rejecting Exh. 111 in Special Execution Petition No.08/2005 filed by the petitioner and in turn allow the application Exh.111 and direct preparation of a Map depicting a 15 feet broad road in agricultural land bearing Block Nos. 4, 20 and 64 situated in village-Khergam, Taluka-Gandevi, District-Navsari as decreed by the Hon'ble Court as well as prepare a Map indicating the share of land that has come in possession of each of the parties as per the decree and thereafter, get the same recorded in the revenue records maintained by the Revenue Authority, in the interest of justice.
C. Pending admission and/or final disposal of the petition, this Hon'ble Court be pleased to stay the further proceedings of Special Execution Petition No.08/2005 pending in the Court of the Principal Senior Civil Judge, Gandevi, till this petition is finally heard and decided by this Hon'ble Court, in the interest of justice.
D. That this Hon'ble Court be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.
E. That this Hon'ble Court be pleased to award cost of the petition from the respondents."
4. At the outset, learned Advocate Mr. Bhadra would submit that despite there is an objection filed by the petitioner at Exh.62 and other beneficiary of consent decree at Exh.63, in the execution proceedings being Special Execution Application No. 8 of 2005 which was filed in the year 2009, after the submission of Map by the DILR, there was no adjudication upon such objections and as such, it was erroneously observed in the impugned order that no such Page 2 of 6 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:52 IST 2025 NEUTRAL CITATION C/SCA/19366/2015 ORDER DATED: 08/07/2025 undefined objections were filed by any of the parties against submission of Map of DILR.
5. Learned Advocate Mr. Bhadra would further submit that as there was none consideration of written objections raised by the petitioner at Exh.62 and other person at Exh.63 by the Executing Court, there was a need arise to filed an impugned application below Exh.111 requesting the Executing Court to prepare a fresh Map as per the decree and to pass further order.
6. Learned Advocate Mr. Bhadra would submit that without taking note of the previous objections on record, the Executing Court has erroneously rejected the impugned application solely on the ground that such application is filed again with the same relief for preparation of Map through the DILR, which is erroneous and perverse observations and reasons on the part of the Executing Court, which requires to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India.
7. Per contra, learned Advocate Mrs. Shaikh would submit that as such, there is no erroneous observation made on the part of the Executing Court while rejecting the impugned application, inasmuch as the relief which has been sought in the impugned application was already granted by the Page 3 of 6 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:52 IST 2025 NEUTRAL CITATION C/SCA/19366/2015 ORDER DATED: 08/07/2025 undefined Executing Court at given point of time, as undisputedly, the DILR was appointed, who has submitted the Map, wherein consent is also given by the petitioner.
8. So, learned Advocate Mrs. Shaikh would request this Court not to interfere with the order passed by the Executing Court.
9. Heard the learned Advocates appearing for the respective parties at length.
10. After going through the impugned order, prima facie, it appears that the Executing Court has rejected the impugned application solely on the ground that after the submission of the Map prepared by the DILR, as per the order passed below Exh.48, there was no objection raised by any of the parties to the execution proceedings. This observation is factually incorrect as there was a written detailed objection submitted by petitioner after submissions of Map prepared by DILR, which was found at Exh.62 in the execution proceedings and so also, another party to the execution proceedings has also submitted his written objections below Exh.63 in the execution proceedings. This fact is unable to be controverted by the learned Advocate Mrs. Shaikh during the course of her arguments.
11. It appears that after the submission of the Map prepared by Page 4 of 6 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:52 IST 2025 NEUTRAL CITATION C/SCA/19366/2015 ORDER DATED: 08/07/2025 undefined the DILR, there are certain objections/grievance raised by the petitioner and other parties to the execution which was never addressed upon by the Executing Court and it further appears that only an order that is recorded is passed on such application, which according to this Court is not just and proper in light of the fact that after receipt of the Map prepared by the DILR and any report thereon, it was incumbent upon the Executing Court to decide any grievance/objection of any of the parties to the execution, thereby, ultimately it can effectively execute the decree.
12. When there is an apparent error on the face of the record committed by the Trial Court, inasmuch as despite there is written objections submitted by the petitioner at Exh.62 and another party to the execution at Exh.63 in the execution itself, the observations and reasons assigned by the Trial Court while rejecting the impugned application is erroneous and perverse and requires interference by this Court while exercising its power under Article 227 of the Constitution of India. [See: Waryam Singh and another V/s. Amarnath and another reported in (1954) AIR (SC) 215].
13. In light of the aforesaid, the impugned order requires to be quashed and set-aside, which is hereby quashed and set aside. I pass the following order:
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NEUTRAL CITATION C/SCA/19366/2015 ORDER DATED: 08/07/2025 undefined
(a) The impugned order dated 10th August 2015, passed by the Principal Senior Civil Judge, Gandevi below Exh.111 in Special Execution Application No. 8 of 2005, is hereby quashed and set aside. The impugned application filed below Exh.111 in the Special Execution Application No. 8 of 2005 is restored back on its file.
(b) The Executing Court is directed to decide the impugned application at Exh.111 along with the written objections filed by the petitioner and the other party to the execution petition at Exh.62 and 63, respectively, as early as possible but in accordance with law.
14. It is further made clear that this Court has neither gone into nor examined the merits of the impugned application and/or the objections submitted by the petitioner and/or any other party, which shall be decided by the Executing Court after affording an opportunity of hearing to all parties concerned in accordance with law. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J) Nilesh Page 6 of 6 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 22:09:52 IST 2025