Gujarat High Court
Paschim Gujarat Vij Company Limited vs Swati Aluminium on 4 September, 2025
NEUTRAL CITATION
C/SCA/13901/2024 ORDER DATED: 04/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13901 of 2024
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PASCHIM GUJARAT VIJ COMPANY LIMITED
Versus
SWATI ALUMINIUM
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Appearance:
MR VIRAL J DAVE(5751) for the Petitioner(s) No. 1
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/09/2025
ORAL ORDER
1. Rule, returnable forthwith. Learned advocate Mr. Tushar L. Sheth waives service of notice of rule for and on behalf of the respondent.
2. With the consent of the parties, the matter is taken up for hearing. Heard learned advocate Mr.Viral J. Dave for the petitioner and learned advocate Mr.Tushar L. Sheth for the respondent.
3. The present application is filed under Article 227 of the Constitution of India seeking following reliefs:
"A That this Hon'ble Court be pleased to issue supervisory writ under article 227 of the Constitution of India quashing and setting aside judgment and nd order dated 04-4-2024 passed by Ld. 2 Additional Page 1 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025 NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined Chief Judicial Magistrate, Gondal in C.M.A no. 45/2023 a copy whereof figure at annexure "A" and further be pleased to restore the execution petition no.4/2019.
B That pending Admission hearing and Final disposal of this petition this Hon'ble Court be pleased to stay implementation and operation of the impugned judgment and order dated 04-4-2024 nd passed by Ld. 2 Additional Chief Judicial Magistrate, Gondal in C.M.A no. 45/2023 a copy whereof figure at annexure "A".
C That this Hon'ble Court be pleased to award the cost of this Special Civil Application to the petitioner.
D That this Hon'ble Court be pleased to pass such other and further order as the nature and circumstance of the case may demand." SUBMISSION OF THE PETITIONER
4. At the outset, learned counsel Mr. Viral J. Dave would submit that petitioner had filed Execution Application being Special Execution No.14 of 2011 for recovery of the amount due and payable from respondent. He would submit that due to non-availability of the officer of the petitioner - company for service of Jangam warrant upon the respondent, Executing Court vide its order dated 19.10.2023 dismissed the Execution as per Order 21, Rule 105 of Civil Procedure Code, 1908 (hereinafter referred to as "C.P.C."). Page 2 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025
NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined 4.1 Learned counsel Mr. Dave would submit that within no time, on 23.11.2023, the petitioner had filed impugned restoration application being C.M.A. No. 45 of 2023, thereby, requested the Executing Court to restore the Execution Application on its file.
4.2 Learned counsel Mr. Dave would submit that despite there is a sufficient cause made out and reasons stated in the application, Trial Court has erroneously rejected impugned application.
4.3 Learned counsel Mr. Dave would further submit that as such, there was no bar to file a fresh execution application but petitioner chooses to file restoration application and in that view of the matter also, restoration application ought to have been restored back on its file.
4.4 Learned counsel Mr. Dave would further submit that as such there is no malafide intention on the part of the officer of the petitioner company not to remain present but due to official reason and other work, he was not available in the office which would not have been ground to dismiss the restoration application. Page 3 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025
NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined 4.5 Lastly, learned counsel Mr. Dave would submit that this court may consider the request made by the petitioner as prayed in the impugned application by imposing any condition and he would assure this Court that on restoration of execution application, petitioner will proceed further with the execution. 4.6 Making the above submission, learned counsel Mr. Dave requests this Court to allow the present application.
SUBMISSION OF THE RESPONDENT
5. Per contra, learned advocate Mr. Tushar L. Sheth appearing for the respondent vehemently objected the prayers made by the petitioner and requested this Court not to entertain the present writ-application filed under Article 227 of the Constitution of India. 5.1 Learned counsel Mr. Sheth would further submit that as such there is no gross error of law committed by the Executing Court while rejecting the impugned application. It is submitted that no case was made out by the petitioner thereby it can sought for restoration of Page 4 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025 NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined execution application.
5.2 Learned counsel Mr. Sheth would further submit that when officials of petitioner - company would not remain present before the Executing Court, no option left with the Executing Court but to reject the execution in accordance with law which was done so. 5.3 Lastly, learned counsel Mr. Sheth would submit that even if this Court would like to allow the impugned application thereby restore the execution proceedings on its file, for no fault of respondent, it is dragged up to this Court, thereby, petitioner may be put to terms and respondent may be compensated in terms of money. 5.4 Making the above submission, learned counsel Mr. Sheth would request this Court not to entertain the present writ-application.
ANALYSIS
6. Having heard the learned counsel for the respective parties and after going through the impugned application and order passed thereon, it appears that execution application was pursued by the petitioner inasmuch as Jangam warrant was also issued by the executing court Page 5 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025 NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined but it could not be served as respondent - judgment debtor was not available on the address as respondent - company was closed down.
7. Thereafter, warrant was issued at the new address of judgment debtor but to serve such warrant, help of officials of petitioner - company required but due to engagement of the officer in other work, bailiff could not serve the warrant. Because of such reason, Executing Court rejected execution application.
8. The petitioner having filed restoration application wherein clearly stated that all proceeding formalities have been completed at its end. It is clearly spelt out from the application that due to pressure of work and as such to grant additional load of electricity to the consumer as there was festival of Navratri coming during that period, officer was unable to coordinate the work with the bailiff.
9. The Trial Court appears to have not considered such facts in its proper perspective but took very hyper technical approach, which requires to have been awarded inasmuch as in such type of application, liberal approach Page 6 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025 NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined requires to be taken by the Court whereby it can advance justice to the parties.
10. Further, in absence of any malafide on the part of the petitioner not to cooperate and give assistance to the bailiff for service of warrant upon the respondent, according to my view, Executing Court should have exercised the discretion available with it under section 151 of CPC, thereby, could have restored the execution application on its file.
11. It is true that this Court should have sparingly exercised its jurisdiction vested under Article 226 of the Constitution of India but it is equally settled that to keep the Court within its bound and in a case where it is found that jurisdiction so vested with the Court has not properly exercised in the interest of justice, this Court should step into the order and to correct such gross error of law committed by Trial Court. [See - Waryam Singh vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)] Page 7 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025 NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined
12. At the same time, arguments so canvassed by the learned advocate Mr. Sheth that due to fault on the part of the petitioner, unnecessarily respondent requires to be dragged up to this Court, for which, respondent can be compensated in terms of money.
13. In light of the aforesaid reasons, this Court is of the opinion that impugned order requires to be quashed and set aside. The respondent can be compensated in terms of money, whereby, petitioner requires to pay Rs.5,000/- as a cost of present litigation to the respondent.
CONCLUSION
14. In view of the foregoing discussions and reasons, the present writ-application is hereby partly allowed, whereby, impugned order dated 04.04.2024 passed by nd learned 2 Additional Chief Judicial Magistrate, Gondal in C.M.A no. 45 of 2023 is hereby quashed and set aside. Consequently, impugned restoration application No.45 of 2023 is hereby allowed subject to petitioner pay cost of Rs. 5,000/- to the respondent within a period of Page 8 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025 NEUTRAL CITATION C/SCA/13901/2024 ORDER DATED: 04/09/2025 undefined three weeks from the date of receipt of the copy of this order.
15. Once, such cost will be paid to the respondent by the petitioner, Execution Application No.4 of 2019 is restored back on its file. Thereafter, Executing Court shall proceed with the Execution in accordance with law and hear and decide it as early as possible.
16. Rule made absolute accordingly.
(MAULIK J.SHELAT,J) MAYA Page 9 of 9 Uploaded by MAYA S. CHAUHAN(HC01402) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 00:17:42 IST 2025