Gujarat High Court
Kutchh District Panchayat Through ... vs Anwarsha Maheboob Saiyed on 22 September, 2025
NEUTRAL CITATION
C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4088 of 2024
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 4088 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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KUTCHH DISTRICT PANCHAYAT THROUGH EXECUTIVE ENGINEER
Versus
ANWARSHA MAHEBOOB SAIYED & ORS.
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Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MR.HASMUKH S SOLANKI(6778) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
RC JANI & ASSOCIATE(6436) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/09/2025
ORAL JUDGMENT
1. Rule made returnable forthwith. Learned advocate Mr. Hasmukh S. Solanki and learned advocate Mr.Keyur A. Vyas waive service of notice of rule on behalf of respondent No.1. Learned advocate Mr. R.C. Jani waives service of notice of rule on behalf of respondent No. 2. Though served, none appears for respondent Nos. 3 and 4.
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2. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
3. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
(A) Your Lordships will be pleased to admit and allow the present petition;
(B) Your Lordships will be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 02.02.2024 passed by learned Principal Senior Civil Judge, Bhuj Kachhchh below Exhibit 14 in Regular Tamil Application No. 28/2023, whereby the application of the executor is allowed by directing to issue an arrest warrant of immovable property of the petitioner.
(C) Pending admission and final disposal of this petition, Your Lordships will be pleased to stay the execution, operation and implementation of the order dated 02.02.2024 passed by learned Principal Senior Civil Judge, Bhuj Kachhchh below Exhibit 14 in Regular Tamil Application No. 28/2023, whereby the application of the executor is allowed by directing to issue an arrest warrant of immovable property of the petitioner;
(D) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted."
SUBMISSION OF THE PETITIONER AND RESPONDENT NO.2
4. Learned advocate Mr.Premal Joshi for the petitioner has drawn the attention of this Court towards the judgment and decree passed by the learned Trial Court, whereby the learned Trial Court has held liable only defendant Nos.2 to 4 while Page 2 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined allowing the suit and not defendant No.1 i.e. present petitioner, and directed accordingly. 4.1. Learned advocate Mr.Premal Joshi has submitted that the judgment debtors i.e. original defendants No.2 to 4 have preferred an appeal being Regular Civil Appeal No.48 of 2008 before the learned Appellate Court below, challenging the judgment and decree dated 24.03.2008 passed by the learned Trial Court in Regular Civil Suit No.384 of 2006. He has submitted that in the said appeal proceeding, the defendant No.1 is shown as respondent No.2. After hearing the parties, the learned Appellate Court below has rejected the said appeal.
4.2. Learned advocate Mr.Premal Joshi has further submitted that the judgment creditor has preferred execution proceeding being Execution Petition - Regular No.28 of 2023 for recovery of the decretal amount, wherein the learned Executing Court has passed the impugned order and issued arrest warrant of immovable property against all the defendants i.e. original defendants No.1 to 4, including Page 3 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined defendant No.1 - present petitioner. He has submitted that there is no decree against the defendant No.1 - present petitioner by the learned Trial Court, even though the learned Appellate Court has issued direction against the petitioner. 3.4 Learned advocate for the petitioner has submitted that since the present petitioner is not the judgment debtor and there is no direction against the present petitioner - original defendant No.1 by the learned Trial Court, the present petitioner has not filed any appeal under Section 96 of the Code of Civil Procedure, 1908.
5. Learned advocate Mr. R.C. Jani would adopt the arguments canvassed by learned advocate Mr. Joshi for the petitioner. It is submitted that the impugned judgment and decree passed by the Appellate Court, and also the Trial Court, were without jurisdiction inasmuch as there is a clear bar under Section 16 of the Gujarat Civil Services Tribunal Act, 1972 (hereinafter referred to as "the Act, 1972"). 5.1. According to learned advocate Mr. Jani, the judgment and decree is a nullity, having been passed without Page 4 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined jurisdiction, thereby, the Executing Court itself requires to reject the application.
6. Making the above submissions, learned advocate Mr.Premal R. Joshi appearing for the petitioner and learned advocate Mr.R.C.Jani appearing for respondent no.2 would request this Court to allow the present application. SUBMISSION OF THE RESPONDENT NO.1
7. Per contra, learned advocate Mr.Keyur A Vyas would submit that as per the judgment and decree passed by the Appellate Court on 25.04.2018, while rejecting Regular Civil Appeal No. 46 of 2018 filed by respondent Nos. 2 to 4 herein, the petitioner herein was held liable to pay monetary benefits along with respondent Nos.2 to 4 herein. 7.1. Learned advocate Mr. Vyas would further submit that it would not be correct to say that the petitioner herein is not a judgment debtor as per the decree passed by the Appellate Court, inasmuch as the decree passed by the Trial Court, Page 5 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined whereby the petitioner stood absolved from his liability, now merges in the decree passed by the Appellate Court. 7.2. Learned advocate Mr. Vyas would submit that the decree passed by the Appellate Court, whereby the petitioner was held liable, has not been stayed by this Court in Second Appeal; until that time, the decree passed by the Appellate Court was executable against the petitioner herein. It is submitted that though respondent No. 1 was deprived of monetary benefits so awarded by the Trial Court and confirmed by the Appellate Court, and due to an inter-state dispute between two sets of departments of the State, the victim is respondent No. 1.
7.3. Learned advocate Mr. Vyas would submit that when there is no stay against execution proceedings granted by this Court in any appeal proceeding instituted by the petitioner herein, no error can be found in the impugned order, inasmuch as the petitioner having failed to deposit the amount as per the decree, the Executing Court was well within its Page 6 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined right to issue an attachment order against the immovable properties of the petitioner.
7.4. Learned advocate Mr. Vyas would humbly submit that when point of jurisdiction was never pressed into service either before the Trial Court or before the Appellate Court; at this stage, it would not be appropriate on the part of the judgment debtor, who is otherwise a State instrumentality, to defeat the right of the decree holder by objecting to a point, which was never pressed into service before the Court below. 7.5. Lastly, learned advocate Mr. Vyas would submit that there was inordinate delay on the part of the petitioner in challenging the judgment and decree passed by the Appellate Court by way of Second Appeal, and as such, this Court does not even entertain such delay applications, whereby, the decree passed by the Appellate Court has now become confirmed. It is respectfully submitted that the amount so deposited by the petitioner as per the order dated 13.03.2024 passed by this Court while issuing notice, along with accrued interest in the FDR, be paid to respondent No. 1 - decree Page 7 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined holder, and for the balance amount, the petitioner may be directed to deposit such balance decretal amount, failing which, its properties may be allowed to be attached as per the order passed by the Executing Court.
7.6. Making the above submissions, learned advocate Mr. Vyas would request this Court to dismiss the present application.
POINT FOR DETERMINATION:
8. Whether, in the facts and circumstances of the present case, is there any irregularity or illegality committed by the Executing Court while passing an order of attachment of the immovable property of the petitioner?
ANALYSIS
9. The facts, which are narrated hereinabove, are not in dispute. To better understand the controversy, the following few facts are necessary to be discussed:-
9.1. The present petition is filed by the petitioner -
original defendant No.1 challenging the impugned order dated Page 8 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined 02.02.2024 passed by the learned Principal Senior Civil Judge, Bhuj - Kachchh below Exh.14 in Execution Petition - Regular No.28 of 2023, whereby the application of the executor is allowed by issuing an arrest warrant of immovable property of the petitioner, pursuant to the judgment and decree dated 24.03.2008 passed by the learned Trial Court i.e. the Principal Senior Civil Judge, Bhuj - Kachchh in Regular Civil Suit No.384 of 2006, whereby the learned Trial Court has allowed the suit and directed the defendants No.2 to 4 to pay the pension, gratuity with 9% interest p.a. w.e.f. 30.11.1985, which is confirmed by the learned Appellate Court below vide judgment and order dated 25.04.2018 by the learned 7th Additional District Judge, Bhuj - Kachchh in Regular Civil Appeal No.46 of 2008.
10. The Appellate Court, while dismissing the appeal filed by respondent Nos. 2 to 4 herein on 25.04.2018, in its operative portion, clearly held the petitioner - respondent No. 2 of that appeal, liable to pay monetary benefits to respondent No. 1 (original plaintiff) along with respondent Nos. 2 to 4. It is true Page 9 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined that the Trial Court had dismissed the suit, holding the petitioner not liable to pay any monetary benefit as prayed in the suit, having granted in favor of the plaintiff but to be paid by respondent Nos. 2 to 4 (defendants No. 2 to 4) as the case may be.
11. Once, the Appellate Court, having decided the lis between the parties and while dismissing the appeal filed at the instance of respondent Nos. 2 to 4, ultimately, held petitioner along with respondent Nos. 2 to 4 - appellants of the appeal liable to pay monetary service benefits to respondent No. 1 - plaintiff, it cannot be gainsaid that such decree passed by the Appellate Court would be not executable against the petitioner, as the decree passed by the Trial Court merged in the decree passed by the Appellate Court.
12. The petitioner, having not questioned the decree till the filing of the execution application in the year, 2023, cannot escape from its liability to pay monetary service benefits to the plaintiff, having also been held liable to pay such amount Page 10 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined with respondent Nos. 2 to 4 by decree passed by the Appellate Court.
13. It requires to be noted that after filing of this writ application, the petitioner appears to have preferred a Second Appeal before this Court challenging the aforesaid judgment and decree passed by the Appellate Court, but as there was a delay of 1357 days in filing such Second Appeal, the petitioner filed a delay application being Civil Application No. 2083 of 2024. After hearing the parties, today itself, this Court has rejected the said delay application being Civil Application No. 2083 of 2024.
14. Thus, in view of the rejection of the delay application filed by the petitioner, the Second Appeal so preferred by the petitioner was not entertained, having not been registered due to the rejection of the delay application. Consequently, the judgment and decree passed by the Appellate Court would stand confirmed against the petitioner as well. Page 11 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025
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15. It is a well-settled legal position of law that an Executing Court cannot go beyond the decree. As the petitioner failed to deposit the amount as per the decree, the decree holder - respondent No. 1 herein, would be within its right to file an execution application against all the judgment debtors, including the petitioner.
16. It is required to be observed that respondent Nos. 2 to 4 were not within the local territorial jurisdiction of the Executing Court vide its order dated 15.03.2023, the Executing Court has issued notice only against the petitioner - defendant No. 1. The plain reading of the decree sought to be executed would not earmark any fixed liability to be paid by the petitioner.
17. In light of above, it would be inappropriate on the part of this Court to interfere with the impugned order passed by the Executing Court, thereby, passed an order under Order XXI Rule 30 of the Civil Procedure Code, 1908, whereby, an attachment order of immovable properties of the petitioner was issued, as it failed to deposit the decretal amount. Page 12 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025
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18. Thus, the upshot of the aforesaid observations, discussions, and reasons, I am of the view that neither any illegality nor any irregularity is found in the impugned order, challenged in the present application. The present application filed at the instance of the judgment debtor requires to be rejected, having not found any merit in the application. CONCLUSION
19. In view of the foregoing reasons, the present application is hereby REJECTED. The impugned order dated 02.02.2024 passed by the Principal Senior Civil Judge, Bhuj - Kachchh, below Exhibit 14 in Regular Execution Application No. 28 of 2023 is hereby confirmed.
20. It is reported to this Court that in pursuance of the order dated 13.03.2024, the petitioner already deposited 25% of the decretal amount, which is ordered to be fixed in a fixed deposit in the name of the Nazir of the Court concerned.
21. As this Court is not entertaining the present application, the Executing Court is hereby directed to pay such amount Page 13 of 14 Uploaded by MOHD MONIS(HC01900) on Tue Sep 23 2025 Downloaded on : Tue Sep 23 23:47:42 IST 2025 NEUTRAL CITATION C/SCA/4088/2024 JUDGMENT DATED: 22/09/2025 undefined with accrued interest in the FDR to respondent No.1/decree holder/original plaintiff, on proper verification in accordance with law.
22. Furthermore, considering the peculiar facts and circumstances, and as the execution proceeding instituted in the year, 2023 but due to the stay granted by this Court against impugned order, it may not have progressed further; hence, the Executing Court is hereby directed to hear and decide the execution application as early as possible, preferably within six months from the date of receipt of the copy of this order.
23. Rule is discharged. Interim relief granted by this Court vide its order dated 13.03.2024 stands vacated forthwith. No order as to cost. The Civil Application, if any, stands disposed of accordingly.
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