Gujarat High Court
Heirs Of Deceased Mahendrabhai ... vs Prashantbhai Kantibhai Patel on 4 November, 2025
NEUTRAL CITATION
C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7104 of 2016
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 7104 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HEIRS OF DECEASED MAHENDRABHAI LALLUBHAI PATEL & ORS.
Versus
PRASHANTBHAI KANTIBHAI PATEL
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Appearance:
MR MOHMEDSAIF HAKIM(5394) for the Petitioner(s) No. 1,1.1,1.2,1.3
SANKUL K KABRA(9304) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/11/2025
ORAL JUDGMENT
1. This Court vide its order dated 22nd September 2025, passed the following order:
"Heard learned Advocate Mr. Himanshu Desai for learned Advocate Mr.Sankul K. Kabara appearing for the respondent would submit that there is an urgency on the part of applicant as stay is operating against them since long.Page 1 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025
NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined Today, learned Advocate, Mr.Mohmedsaif Hakim appearing for petitioner is on sick note up to 22.09.2025.
Stand over to 30.09.2025. On next date of hearing, it is open to seek for priority irrespective of sick note of learned Advocate for the petitioner and the matter will be taken up for hearing."
2. Thereafter, also on 14th October 2025, this Court passed the following order:
"1. Learned Advocate Mr. Sankul K. Kabra for the respondent is present, having sought priority in the matter, but none present for the petitioners.
2. As a last chance, S.O. to 4th November 2025.
3. It is made clear that on the next date of hearing, irrespective of any sick note/leave note of learned Advocate for the petitioners, this Court will proceed with the matter.
4. It is open for the respondent to seek priority on the next date of hearing."
3. Today, when the matter taken up by this Court, as priority sought by respondent, it is reported that the learned Advocate for the petitioners is on a sick note. When, in past, this Court has sufficiently accommodated the learned Advocate appearing for the petitioners and categorically observed in its last order Page 2 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined dated 14th October 2025 that on the next date of hearing, irrespective of any sick note or leave note of the learned Advocate for the petitioners, this Court will proceed with the matter. Hence, this Court has no option left but to decide the matter in the absence of the learned Advocate for the petitioners.
4. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"(A) THIS HON'BLE COURT MAY BE PLEASED TO quash and set-aside the impugned Order dated 19-03-2016 passed below Exh. 287 in Regular Civil Suit No. 90 of 2011 (Original Special Civil Suit No. 445 of 1997) passed by the Hon'ble Trial Court i.e. Principal Civil Judge and Judicial Magistrate, First Class, Vaghodiya;
(B) THE HON'BLE COURT MAY BE PLEASED TO allow the application Exh. 287 in Regular Civil Suit No. 90 of 2011 (Original Special Civil Suit No. 445 of 1997);
(C) Pending admission, hearing and till final disposal of the present Petition, THIS HON'BLE COURT MAY BE PLEASED TO stay execution, implementation and operation of the impugned Order dated 19-03-2016 passed below Exh. 287 in Regular Civil Suit No. 90 of 2011 (Original Special Civil Suit No. 445 of 1997) passed by the Hon'ble Trial Court i.e. Principal Civil Judge and Judicial Magistrate, First Class, Vaghodiya;
(D) Pending admission, hearing and till final disposal of the present Petition, THIS HON'BLE COURT MAY BE PLEASED TO Page 3 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined stay Proceedings of Execution Petition i.e. Regular Darkhast No. 22 of 2015 pending before the Hon'ble Court of Principal Civil Judge, Vaghodiya;
(E) THIS HON'BLE COURT MAY BE PLEASED TO award the costs of the present Petition;
(F) THIS HON'BLE COURT MAY BE PLEASED TO grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice and equity."
5. Heard learned Advocate Mr. Himanshu Desai with learned Advocate Mr. S. K. Kabara for the respondent at length.
6. Learned Advocate Mr. Desai takes me through the impugned application filed by the petitioners herein below Exhibit 287 in the Civil Suit in question, impugned order passed by Trial Court, and so also, affidavit-in-reply filed by the respondent. 6.1. Learned Advocate Mr. Desai would respectfully submit that respondent herein filed Regular Civil Suit No. 445 of 1997 (New Regular Civil Suit No. 868 of 2011) against the petitioners herein, seeking specific performance of an agreement to sell executed between the parties on 24th November 1994, in relation to the suit property. It is submitted that pending the suit, there was a compromise arrived at between the parties, whereby, compromise agreement executed Page 4 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined between the parties on 22nd November 2012 / 26th November 2012 came to be filed below Exh.282 before the Trial Court in the aforesaid suit. It is further submitted that such compromise agreement was duly signed by all the petitioners/defendants as well as the respondent/plaintiff and his Advocate. It is further submitted that after getting the compromise agreement on record, the Trial Court has read over the terms of compromise to the parties, which clearly mentioned/observed by the Trial Court vide its order dated 26th November 2012, whereby, passed compromise decree in the matter.
6.2. Learned Advocate Mr. Desai would further submit that before presenting the aforesaid compromise agreement, the miscellaneous appeal filed by the respondent herein before the District Court came to be withdrawn on 23rd November 2012, wherein clearly stated that there is an amicable settlement arrived between the parties outside the Court. It is submitted that on the basis of such settlement between the parties, when consent decree came to be passed by the Trial Court, such consent decree could not have been questioned by the petitioners herein.
6.3. Learned Advocate Mr. Desai would further submit that on Page 5 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined 17th June 2013, an impugned application came to be filed by the petitioners herein below Exhibit 287 in the aforesaid suit, whereby, questioned the compromise decree. It is submitted that the aforesaid compromise decree passed by the Trial Court questioned by the petitioners on ground of alleged fraud. It is alleged in the impugned application that before such compromise agreement between the parties, the petitioners herein have already sold the suit land in favour of one Navinchandra Harmanbhai Patel by way of registered sale deed on 30th March 2012, whereby, they could not have agreed to pass on valid title of suit property in favour of the respondent herein, inasmuch as, they could not have agreed for granting relief in terms of Para-9 of the plaint. It is respectfully submitted that no evidence laid by the petitioners herein in support of their impugned application, rather failed to prove and establish any fraud on record.
6.4. Learned Advocate Mr. Desai would further submit that each and every contention and decisions cited by the petitioners herein have been dealt with by the Trial Court while rejecting the impugned application. It is respectfully submitted that when petitioners herein have failed to prove the fraud on Page 6 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined record of the case, a mere allegation of fraud would not ipso facto entitled the petitioners to maintain the impugned application. It is further submitted that the scope of interference in such compromise decree is very minimal, inasmuch as, only in a case of fraud played by the parties to obtain the decree, the Court should not interfere with such compromise decree.
6.5. Learned Advocate Mr. Desai would further submit that petitioners have taken out new grounds to challenge the consent decree, inasmuch as, violation of any provisions of FEMA Act etc, so stated in the petition and during the course of first hearing of this petition, never pressed into service by petitioners when filed impugned application. It is submitted such ground is not tenable in law as petitioners have already submitted copy of PAN Card, Election Card and copy of his Indian Passport i.e. reply, which indicates that aforesaid ground canvassed by petitioners is nothing but misguiding/misleading the Court when filed present writ application.
6.6. Lastly, learned Advocate Mr. Desai would submit that this Court, while exercising its power under Article 227 of the Page 7 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined Constitution of India, having limited jurisdiction to interfere with the impugned order and as such, there is no gross error of law, inasmuch as, no jurisdictional error committed by the Trial Court while rejecting the impugned application, thus, this Court should not entertain the present writ application.
7. No other and further submissions are being made.
8. Having heard the learned Advocate for the respondent and in the absence of any appearance on behalf of the petitioners, this Court left with no option but to consider the submissions made by learned Advocate Mr. Desai for the respondent.
9. The suit in question filed by the respondent herein, seeking specific performance of an agreement for sale executed by the predecessor of the petitioners in the year 1994. It appears from the record that there was a compromise agreement entered into between the petitioners and respondent on 26th November 2012, duly signed by them and presented before the Trial Court below Exhibit 282 in the aforesaid suit. It is not even a case of the petitioners herein that the signatures which are appeared on such compromise were forged ones, inasmuch as, not duly signed by the petitioners. What is alleged in the impugned Page 8 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined application, whereby, challenged the compromise decree that under mistaken belief, such compromise was fraudulently obtained by the respondent herein. Such plea is bereft of any material particulars and without any basis and evidence, inasmuch as, the Trial Court, while accepting such compromise, clearly observed/recorded in its order dated 26th November 2012, passed below Exhibit 282 i.e. compromise agreement, that the terms of compromise read over to the parties in presence of their lawyers, which is accepted by the parties. Accordingly, compromise decree came to be passed. The Trial Court while dealing with the impugned application and so also, dealt with the submissions/decisions canvassed by the petitioners herein, elaborately answered each and every submission so made by the petitioners herein.
10. The stand taken by the petitioners that prior to the execution of the compromise, they have already sold the suit land in favour of one Navinchandra Harmanbhai Patel on 30th March 2012 and such sale deed is subject matter of Special Civil Suit No. 718 of 2012, filed by the respondent herein on 13th October 2012, is concerned, such plea would not remotely constitute any element of fraud when compromise decree passed. It is Page 9 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined settled legal position of law that during the pendency of any suit for specific performance, any sale deed executed by the original owner in favour of third party, such sale deed would always be subject to the outcome of the suit filed seeking specific performance. [See - Maharaj Singh V/s Karan Singh reported in (2024) 8 SCC 83].
11. Be that as it may, once as per compromise decree passed in favour of the petitioners herein, and the aforesaid suit pending against the third party subsequent purchaser, I do not find any element of fraud, inasmuch as, the respondent can continue with his aforesaid suit against the third party - subsequent purchaser for cancellation of the subsequent sale deed executed by the petitioners herein in favour of the third party during the pendency of the suit.
12. It further appears that petitioners have taken out some new grounds of challenge to the consent decree citing violations of provisions contained in FEMA Act, which can be discernible from order dated 29th April 2016 passed by this Court when issued notice in this matter. Such ground was never pressed into service by petitioners before the Trial Court when filed impugned application, thereby, they cannot be permitted to Page 10 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined question the consent decree on new grounds which never argued before the Trial Court. Furthermore, along with affidavit-in-reply of the respondent, a copy of Election Card, PAN Card and Indian Passport of the respondent are annexed, which prima facie, dispel the aforesaid ground of the petitioners.
13. As such, this Court unable to find any perversity, arbitrariness and/or any erroneous approach on the part of the Trial Court while rejecting the impugned application. Moreover, the scope of interference in compromise decree is also very limited. Only in a case where, a case made out that there is a fraud played by party while obtaining compromise decree and or any unlawful agreement or compromise taken place between parties on such basis decree passed, in other facts/circumstances, the Court should loath to interfere with such compromise decree.
14. In view of the aforesaid peculiar facts and circumstances of the present case, and having not found that there is any fraud germane from the record of the case and as such, petitioners even failed to prove the fraud on record of the case, thus, no grounds made out by petitioners of any interference of this Court in the impugned order passed by the Trial Court, that Page 11 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025 NEUTRAL CITATION C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025 undefined too when have its limited jurisdiction while exercise its power under Article 227 of the Constitution of India. [See - (i) Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and 7) and (ii) Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
15. In view of the foregoing conclusion, the present writ application is bereft of any merit, requires to be rejected, which is hereby rejected. Rule is discharged. Interim relief stands vacated forthwith. No order as to costs.
16. Civil application would not survive.
(MAULIK J.SHELAT,J) NILESH Page 12 of 12 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:25:19 IST 2025