Gujarat High Court
Yadav Munnabhai Ramsharan L H Of Decd. ... vs Mohamad Zuber Sheikh Mohamad Seikh on 7 November, 2025
NEUTRAL CITATION
C/CRA/569/2019 ORDER DATED: 07/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 569 of 2019
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YADAV MUNNABHAI RAMSHARAN L H OF DECD. RAMSHARAN
RAGHUNATH
Versus
MOHAMAD ZUBER SHEIKH MOHAMAD SEIKH & ANR.
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Appearance:
MR AKSHAY A VAKIL(5473) for the Applicant(s) No. 1
MR DHRUV R THAKKAR(11280) for the Opponent(s) No. 1,2
MR UVESH M SHAIKH(11313) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/11/2025
ORAL ORDER
1. By way of this petition u/s 115 of the Code of Civil Procedure, 1908, the petitioner has prayed to quash and set aside order dated 4.12.2019 passed by the learned Small Cause Court, Court No.16, Ahmedabad below application Exh.24 in Execution Petition No.225 of 2018 in original HRP Suit No.182 of 2002.
2. Surjitsingh, Arora and Harcharansingh Arora being landlord of the suit property filed aforestated HRP suit before the learned Small Cause Court, Ahmedabad seeking eviction of tenant Ramcharan Raghunath under the provisions of the Bombay Rent Act from the demise premises situated on survey No.273-1/A/B having final plot No.40 of TP scheme No.13. The decree was passed in the suit on 3 rd October 2006. The judgment debtor and tenant Mr. Ramcharan Raghunath Page 1 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined or his heir and legal representative did not challenge the same before higher forum, hence the judgment and decree passed by the learned Small Cause Court attained finality.
2.1 Since the judgment debtor and the tenant did not evict the demise premises, the plaintiffs - judgment holder filed Execution Petition No.61 of 2007 before the competent court, but it was disposed of on 23 rd July 2010, as the tenant was found expired. The demise premises then was sold to the respondents herein along with the decree and right to execute the decree passed in the HRP suit.
2.2 Pursuant to which, the respondents herein had filed fresh execution petition before the learned Small Cause Court being No.225 of 2018 within the stipulated time limit i.e. on 25th July 2018 and in this executing petition, the learned Executing Court issued possession warrant under Order 21 Rule 35 of the CPC allowing application Exh.24.
2.3 Being aggrieved by the aforesaid, the present petitioner, legal heirs of deceased Ramcharan Raghunath filed present petition.
3. Heard learned advocates for the respective parties.
4. Two fold submissions are made by learned advocate Mr. Vakil to assail the impugned order. Firstly, he would submit that the first execution was dismissed for default and therefore, filing of second execution petition is not permissible without resorting to remedy available under Order 21 Rule Page 2 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined 105 of the Code to restore the dismissed executive petition. For second submission, he argued that second execution was filed against deceased Ramcharan Raghunath, i.e. against dead person. It was established from the Bailiff report dated 23rd March 2007 and yet having knowledge of death of Ramcharan Raghunath, second execution was filed and that too against the dead person. He would further submit that the plaintiffs, who have tried to cure the defect by joining heirs of deceased Ramcharan Raghunath, intended to execute the execution beyond a limitation prescribed under Article 136 of the Limitation Act. He would further submit that the learned Executing Court did not consider this issue and straightway issued possession warrant against the legal heirs of the deceased judgment debtor under Order 21 Rule 35 of the CPC, which is illegal and beyond scope of the decree sought to be executed. He would further submit that the order passed by the learned Executing Court on its face value is erroneous, and therefore, while admitting this revision, the coordinate bench of this court passed the order in favour of the petitioner by staying further proceedings of the execution observing that the execution petition was filed against dead person and cannot be cured by adding legal heirs later on.
4.1 It is in the aforesaid circumstances, learned advocate Mr. Vakil would submit that in reality, the execution against the present petitioner is filed beyond prescribed period of limitation, as well as beyond the scope of decree and also against dead person. All these defects point out that learned Executing Court has committed serious and legal error. Thus, he prays that this Court may intervene as the learned Page 3 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined Executing Court has committed serious error of law.
4.2 Upon above submissions, learned advocate for the petitioner prays to allow this petition.
5. As against aforesaid argument, while referring to the judgment of the Hon'ble Apex Court in case of Bhagyoday Cooperative Bank Ltd. Versus Ravindra Balkrishna Patel Deceased.Through His Lrs., 2022 (14) SCC 417, more particularly para 12 and 21 thereof, learned advocate appearing for the respondents - plaintiffs - decree holder would submit that the Hon'ble Apex Court has clearly held that mere dismissal of the first application on the ground of default may not result in the decree holder being precluded from filing fresh execution, provided it is within the stipulated time period. He would further submit that the execution petition is only filed against the petitioner and not against dead person Ramcharan Raghunath. Referring to form of the execution petition, he would submit that in Column No.2, the judgment holder referred to name of the party to the HRP suit, however, in column No.9, it is specifically stated that decree should be executed against the petitioner herein, who is the legal heir of the deceased. Therefore, he would submit that the execution was filed only against Munna Ramcharan - petitioner herein and not against deceased Ramcharan. He would further submit that the argument canvassed by learned advocate Mr. Vakil that the petition is filed totally on misconception that the execution is filed against dead person has no legs to stand.
Page 4 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined 5.1 Upon above submissions, learned advocate Mr. Thakkar would submit that therefore, the petition is bereft of merits and deserves to be dismissed and requests the Court to dismiss the petition.
6. In Bhagyoday Cooperative Bank Ltd (supra), the Hon'ble Apex Court held that it is in execution that a decree holder is confronted with an unimaginably large number of obstacles. Para 2 of the judgment reads as under:-
"2. The woes of a decree holder begin after obtaining a decree. It is in execution that a decree holder is confronted with an unimaginably large number of obstacles. With the facts as unfolded in the course of the judgment, we are reinforced in our belief that there is substance in this complaint."
6.1 The above observation of the Hon'ble Apex Court perfectly applies to the execution petition, order of which is under challenge in the petition.
7. Now coming to the facts of the case, more particularly perusing the second execution memo filed by the plaintiffs - decree holder, it could be noticed that in the column of party's name, the names of the plaintiffs are stated as Surjjitsingh and Harcharansingh and the name of the defendant is stated as Ramcharan Raghunath, exactly matching with the cause title of the HRP suit. It is interesting to notice that this second execution is filed by the petitioners - the purchasers of the suit properties, therefore, it cannot be said that the execution was filed against deceased Ramcharan Raghunath, who was Page 5 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined passed away much earlier. In column No.2 of execution form, decree holder has specified name of the parties as appeared in the HRP suit. In Column No.9 of the execution form, it is specifically held that since now Munnahai Ramcharan, legal heir of deceased Ramcharan Raghunath is in possession of the demise premises, the execution be carried out against that person. In the aforesaid situation, the contention raised by the petitioner is nothing, but to put hurdle purposefully to the execution of the decree. Recently, in case of Periyammal (Dead) Through Lrs Versus V.Rajamani, 2025 (2) GLH 1, the Hon'ble Apex Court observed that the seeker of justice many a time has to take long circuitous routes, both on account of hierarchy of courts and the procedural law. Therefore, the Hon'ble Apex Court directed the learned Executing Court to ensure that vacant and peaceful possession of the suit property be handed over to the appellant and directed that the execution to be completed within six months.
8. In NSS Narayan Sarma & Ors. vs. Goldstone Exports (P) Ltd. & Ors., reported in (2002) 1 SCC 662, the Hon'ble Apex Court held as under:-
""15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other Page 6 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined person entitled to occupy the same and not bound by the decree to relinquish such occupancy.
Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree holder entitled to possession of the property encounters obstruction from any person. From the provisions in these rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with all issues relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree Page 7 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case .
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19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property the executing Court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree." (Emphasis supplied)"
9. In the aforesaid circumstances, the contention raised by the petitioner that second execution was filed against dead person is totally misconceived. In the second execution, the judgment holder plaintiffs have just referred and mentioned the name of the parties in HRP suit. The second execution was never filed against deceased Ramcharan, who was passed away much earlier. Second execution was filed by the respondents herein in the capacity of the purchaser of the suit property and it was evidently filed against the present petitioner.
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10. As far as second contention that after dismissing the first execution on default, second execution is not maintainable is completely governed by the judgment of the Hon'ble Apex Court in case of Bhagyoday Cooperative Bank Ltd (supra), wherein in para 21, the Hon'ble Apex Court held as under:-
"21. The first question we have to consider is whether the dismissal of the execution petition filed by the appellant apparently on the ground of default or withdrawal of the first execution petition will result in a bar for the filing or the prosecuting of the Second execution petition. In this regard, in fact, we must notice that the learned counsel for the respondent does not seek to raise any objection as such to the contentions of the appellant that the second execution application would be maintainable provided it is within the period of limitation. We also find merit in the contentions of the appellant that the mere dismissal of the first application on the ground of default may not result in the decree holder being precluded from filing a fresh execution petition provided it is within time."
11. Thus, it appears that the petition is frivolous, vexatious and abuse of process of law. A falsified contention has been raised by the petitioner to frustrate decree and to avoid execution.
12. In case of Rahul S.Shah Versus Jinendra Kumar Gandhi, 2021 (6) SCC 418, the Hon'ble Apex Court observed that the execution proceedings which are supposed to be handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice. The observations of the Hon'ble Apex Page 9 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025 NEUTRAL CITATION C/CRA/569/2019 ORDER DATED: 07/11/2025 undefined Court is exactly applies to the facts of the present case demanding quantification of cost.
13. For the foregoing reasons, the petition is dismissed with cost of Rs.15000/- to be paid to the plaintiffs - judgment holder within 15 days from the date of receipt of copy of this order, failing which, it would be open for the original plaintiffs
- decree holder to execute the same by way of amending execution petition pending before the learned Executing Court. Notice discharged. Interim relief granted earlier stands vacated.
14. The learned Executing Court is directed to complete the execution proceedings within six months as per the guidelines issued by the Hon'ble Apex Court. Possession warrant be executed forthwith.
15. After passing of the order, Learned advocate for the petitioner prays to extend interim relief for a further period of four weeks so as to enable him to approach the higher forum. The request being unusual and in teeth of the direction issued by the Hon'ble Apex Court, is hereby refused.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 10 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 22:17:39 IST 2025