Gujarat High Court
Chitrang Jayeshbhai Shah vs Geetaben Mahendrabhai Shah on 7 May, 2025
NEUTRAL CITATION
C/SCA/6402/2025 ORDER DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6402 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6402 of 2025
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CHITRANG JAYESHBHAI SHAH
Versus
GEETABEN MAHENDRABHAI SHAH & ANR.
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Appearance:
MR SR YADAV(2395) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/05/2025
ORAL ORDER
1. Heard Learned Advocate Mr. S. Yadav appears for the petitioner - original defendant.
2. The present writ application is filed under Article 227 of the Constitution of India seeking the following reliefs:
"(6) a) Kindly admit this Special Civil Application.
b) Kindly call for the record and proceedings of Execution Application No.73/2024 pending before the Hon'ble City Civil Court No.14, Ahmedabad.
c) Kindly quash and set aside order dated 27/03/2025 passed by learned City Civil Judge, Ahmedabad city rejecting the objection and application for stay Exhibit No.14, 16, 20 and 23.
d) Pass any other order(s) your lordships deem fit to pass."Page 1 of 6 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 16:16:37 IST 2025
NEUTRAL CITATION C/SCA/6402/2025 ORDER DATED: 07/05/2025 undefined 2.1 The parties are referred to as per their original position before the trial Court.
3. The respondents herein are the original plaintiffs, who instituted a Regular Civil Suit No.31 of 2020 against the present petitioner - defendant seeking vacant possession of the suit property and also mense profits.
3.1 It appears that the petitioner chosen not to appear before the trial court. Consequently, the suit proceeded ex parte and, vide judgment and decree dated 12th July 2022, the trial court partly allowed the suit in favour of the plaintiff. As per the aforesaid judgment and decree, the defendant was directed to vacate the suit property within 30 days, hand over peaceful possession to the plaintiff, and pay mense profit. 3.2 It further appears that the defendant has filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') before the trial court and so also preferred a regular appeal challenging the very same judgment and decree before the appellate court, both are pending for its adjudication in Page 2 of 6 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 16:16:37 IST 2025 NEUTRAL CITATION C/SCA/6402/2025 ORDER DATED: 07/05/2025 undefined respective courts.
3.3 In the meantime, the plaintiffs have filed an execution application seeking possession and mesne profit. The defendant-judgment debtor submitted objections and sought adjournments for stay of execution proceedings, as intending to approach a higher court.
3.4 Initially, the execution court granted some indulgence by staying the execution proceedings. However, when no favourable order was secured, the execution proceedings resumed, and the executing court decided the objections vide its order dated 27th March 2025. This order is under challenge by way of the present petition.
4. Learned counsel Mr. Yadav for the petitioner would submit that the executing court could not have rejected the objections raised by the petitioner as the appeal filed by the judgment debtor is pending adjudication and so also the application under Order 9 Rule 13 of the CPC pending before the trial court.
4.1 Learned counsel Mr. Yadav would further submit that the Page 3 of 6 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 16:16:37 IST 2025 NEUTRAL CITATION C/SCA/6402/2025 ORDER DATED: 07/05/2025 undefined executing court had the power to stay proceedings and the discretion available to it was not correctly exercised in favour of the judgment debtor, resulting in miscarriage of justice. 4.2 Learned counsel Mr. Yadav would submit that, by turning down the objections, a warrant order was issued against the petitioner, which would create hardship and inconvenience in the event his appeal or application under Order 9 Rule 13 of the CPC is ultimately allowed.
4.3 No other and further submissions being made by learned advocate Mr. Yadav.
5. Having considered the submissions, it is observed that the petitioner-defendant-judgment debtor did not remain present before the trial court, resulting in passing of a decree of eviction as well as order of mesne profit. Such judgment and decree was passed on 12th July 2022, which has not been stayed by the appellate court, executing court has no other option but to proceed with execution. In fact, the appeal itself was filed with a delay application, which is still pending adjudication. Nonetheless, executing court was kind to Page 4 of 6 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 16:16:37 IST 2025 NEUTRAL CITATION C/SCA/6402/2025 ORDER DATED: 07/05/2025 undefined judgement debtor thereby, it had stayed execution for some time but it can stayed it for long. Now, it is well settled law that executing court is required to execute decree at earliest and if possible within six months. (See 2025 SCC OnLine SC 507 in a case of Periyammal (Dead) through LRS V/s Rajamani) 5.1 Be that as it may, when the judgment debtor having failed to secure any stay order from the appellate court left no option with the executing court but to reject the objections as no substantial case was made out by the petitioner in his objections. It is well settled that the executing court cannot go beyond the decree.
5.2 In light of the aforesaid facts and circumstances, I do not find any substance in the arguments canvassed by learned counsel Mr. Yadav for the petitioner.
5.3 Having found no merit in the present writ application, this Court would not like to interfere with the impugned order while exercising its power under Article 227 of the Constitution of India, wherein the scope of interference is otherwise very Page 5 of 6 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 16:16:37 IST 2025 NEUTRAL CITATION C/SCA/6402/2025 ORDER DATED: 07/05/2025 undefined limited. [See Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and
7) and Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
5.4 Accordingly, the present writ application stands rejected. There shall be no order as to costs.
6. In view of disposal of the main writ application, the connected civil application also does not survive and stands disposed of accordingly.
(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 6 of 6 Uploaded by DRASHTI K. SHUKLA(HC00354) on Fri May 09 2025 Downloaded on : Sat May 10 16:16:37 IST 2025