Gujarat High Court
Pankaj Yashvantlal Parikh Through Poa ... vs Hemantbhai Yashvantbhai Parikh on 13 November, 2025
NEUTRAL CITATION
C/SCA/15093/2025 ORDER DATED: 13/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15093 of 2025
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PANKAJ YASHVANTLAL PARIKH THROUGH POA VISHAL MUKESH
PARIKH
Versus
HEMANTBHAI YASHVANTBHAI PARIKH
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Appearance:
MR MANISH S SHAH(5859) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 13/11/2025
ORAL ORDER
[1] This petition under Article 227 of the Constitution of India is filed by the petitioner - original plaintiff, assailing the order dated 21st July 2025 passed by the learned 5th Additional District Judge, Panchmahal at Godhra below Exhibit 6 in Regular Civil Appeal No.11 of 2024, whereby the Appellate Court has stayed the execution of the judgment and decree dated 1st January 2024 passed by the learned Trial Court in Regular Civil Suit No.244 of 2013 directing the respondent - original defendant to hand over vacant and peaceful possession of the suit property to the petitioner.
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NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined [2] The brief facts necessary for adjudication of the present petition are as under:
[2.1] The petitioner - original plaintiff instituted Regular Civil Suit No.244 of 2013 seeking a decree for possession and mesne profits, alleging that the respondent - original defendant was in unauthorised occupation of the suit property. [2.2] By judgment and decree dated 1st January 2024, the learned Trial Court partly allowed the suit, directing the respondent to hand over vacant and peaceful possession of Survey No.18/298 and restraining the respondent from transferring the suit property.
[2.3] Aggrieved by the said judgment, the respondent preferred Regular Civil Appeal No.11 of 2024 before the learned District Court, Panchmahal, along with an application below Exhibit 6 seeking stay of execution of the decree. [2.4] The petitioner has also filed a separate Regular Civil Appeal challenging the Trial Court's refusal to grant mesne profits, Page 2 of 8 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:21:05 IST 2025 NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined however with an application for condonation of delay being Civil Misc. Application No.9 of 2025, which remains pending. [2.5] Upon hearing both sides, the Appellate Court, vide order dated 21st July 2025 below Exhibit 6 in Regular Civil Appeal No.11 of 2024, stayed the execution and implementation of the judgment and decree dated 1st January 2024 passed in Regular Civil Suit No.244 of 2013.
[3] Being aggrieved and dissatisfied with the aforesaid, the petitioner herein - original plaintiff has approached this Court by way of this petition under Article 227 of the Constitution of India for the appropriate writ, order and directions. [4] Heard learned advocate Mr. Manish Shah for the petitioner - original plaintiff.
[5] Learned advocate Mr. Shah for the petitioner herein, while challenging the impugned order, has made the following submissions:
[5.1] Learned advocate Mr. Shah submitted that the Page 3 of 8 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:21:05 IST 2025 NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined impugned order of the Appellate Court is ex facie illegal, unjust, and contrary to law, and therefore warrants interference. [5.2] He argued that the petitioner, being the decree holder, has been held entitled to possession, whereas the respondent has been found to be in illegal occupation of the suit property. In such circumstances, the Appellate Court ought not to have granted an unconditional stay of the decree. According to Mr. Shah, appropriate conditions should have been imposed while granting a blanket stay of the Trial Court's judgment and decree. [5.3] Reliance was placed on the decision of the Hon'ble Supreme Court in Martin & Harris Private Limited v. Rajendra Mehta, (2022) 8 SCC 527, to contend that once a decree for possession is passed, the Appellate Court must fix reasonable mesne profits equivalent to market rent for the period during which the judgment-debtor continues in possession. As the respondent is admittedly in illegal possession, the Appellate Court ought to have fixed such mesne profits while granting stay. Mr. Shah therefore submitted that the unconditional stay granted by the Appellate Page 4 of 8 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:21:05 IST 2025 NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined Court is unsustainable and deserves to be quashed. [6] By making above submissions, learned advocate Mr. Shah for the petitioner - original plaintiff requested this Court to allow the present petition by quashing and setting aside the impugned order in the interest of justice.
[7] In view of the submissions advanced on behalf of the petitioner and upon examining the material on record, the issue that arises for consideration is whether the learned Appellate Court erred in granting an unconditional stay on the execution and implementation of the decree passed by the learned Trial Court. [8] So as to decide the aforesaid question, certain facts deserve to be taken note of which are as under: [8.1] The petitioner - original plaintiff instituted Regular Civil Suit No.244 of 2013 seeking declaration, possession, and mesne profits. The learned Trial Court partly allowed the suit by granting declaration and possession of the suit property, while declining the relief of mesne profits.
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NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined [8.2] Aggrieved by different parts of the judgment, both parties preferred separate appeals before the learned District Court. The petitioner filed a Regular Civil Appeal along with Civil Misc. Application No.9 of 2025 seeking condonation of delay, challenging the denial of mesne profits, which is still pending. The respondent filed Regular Civil Appeal No.11 of 2024, in which the Appellate Court, on an application at Exhibit 6, granted an interim stay on the execution of the judgment and decree passed by the Trial Court.
[9] Upon consideration of the above facts, it emerges that the respondent - original defendant promptly invoked the statutory remedy of appeal under Section 96 of the Civil Procedure Code, challenging the judgment and decree of the Trial Court. There is nothing on record to suggest that the filing of the appeal was intended to delay the proceedings. It is also undisputed that the petitioner - original plaintiff has not initiated execution proceedings.
In this background, when the petitioner's own appeal seeking Page 6 of 8 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:21:05 IST 2025 NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined mesne profits is still pending at the stage of delay condonation, the contention that the Appellate Court ought to have fixed mesne profits while granting stay in the respondent's appeal cannot be accepted. Acceptance of such a contention would, in effect, amount to granting the very relief sought by the petitioner in his pending appeal, even before the delay is condoned and the appeal is heard on merits. The issue of mesne profits is squarely pending before the Appellate Court and can appropriately be adjudicated at the time of final disposal and / or even at the interim stage, if any stay application is filed by the petitioner. Therefore, non-grant of mesne profits at this stage does not cause any prejudice to the petitioner. [10] As regards the reliance placed on Martin & Harris Private Limited (supra), the said judgment is distinguishable on facts. In that case, the decree-holder had initiated execution proceedings, and there was a clear attempt to delay execution. Further, the dispute arose out of a landlord-tenant relationship, where rent and fair market value were already determined. In contrast, the present matter does not emanate from a landlord- tenant relationship, nor is there any pre-existing rent or agreed Page 7 of 8 Uploaded by CHANDRESH N. SIDDHAPURA(HC01109) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:21:05 IST 2025 NEUTRAL CITATION C/SCA/15093/2025 ORDER DATED: 13/11/2025 undefined consideration that can form the basis for fixing mesne profits at the interim stage. Hence, the principle laid down in Martin & Harris cannot be mechanically applied to the present case. [11] In view of the aforesaid and bearing in mind the limited supervisory jurisdiction under Article 227 of the Constitution of India, no perversity, illegality or jurisdictional error is found in the impugned order of the Appellate Court. The order appears to be just, proper, and does not warrant interference. [12] Present petition is accordingly dismissed with no order as to costs.
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