Yogesh Navinchandra Desai vs Heirs Of Kachhia Patel Ambalal ...
2021 Latest Caselaw 4977 Guj

       C/SCA/17136/2019                                 JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 17136 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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     Whether Reporters of Local Papers may be allowed
 1                                                                  NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                         YES

     Whether their Lordships wish to see the fair copy
 3                                                                  NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution              NO
   of India or any order made thereunder ?

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                YOGESH NAVINCHANDRA DESAI
                            Versus
          HEIRS OF KACHHIA PATEL AMBALAL VADILAL
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Appearance:
MR MIHIR THAKORE, SR ADVOCATE with MR SIDDHANT K
GUJARATHI(10789) for the Petitioner(s) No. 1,2,3,4
MS KSHMA V SHETH(2051) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 01/04/2021

                          ORAL JUDGMENT

1. This petition under Article 227 of the Constitution of India is filed by the petitioners challenging the order dated 20.03.2019, passed in Execution Petition No. 1 of 2016, disposing of the said execution petition as decree was found to be satisfied, and the

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order dated 16.04.2019, passed in Review Petition No. 25 of 2019, by which, the said review petition came to be rejected as not maintainable in view of the provisions of section 114 and Order 47 of the Civil Procedure Code, 1908 (CPC), by the learned Principal Senior Civil Judge, Kapadwanj, Kheda.

Facts of the case:

2. The matter has a chequered history. A land bearing revenue survey No. 158 paiki, city survey No. 6650, admeasuring about 100 sq. yards having boundaries situated in Kapadwanj Town was originally owned by Vohra Abdulhusein Tarwala and Aminaben, D/o. Abdulhusein Daudbhai. The suit property is a part of revenue survey No. 158, total admeasuring acre 1 and 4 gunthas, leaving the land acquired by the State Transport Corporation. A registered sale deed dated 10.09.1932, registered on 07.10.1932 with respect to the whole survey No. 158 in favour of on Desai Keshavlal Chhaganlal came to be executed by Vohra Abdeali Abdulhusein Tarwala and Aminaben, D/o. Abdulhusein Daudbhai for a consideration of Rs.600/-. Thereafter, possession of the whole suit property was handed over to Desai Keshavlal Chhaganlal (now deceased) and since then, he was in possession of the same.

2.1 Desai Keshavlal Chhaganlal created a trust namely Desai Keshavlal Chhaganlal Trust, a Public Charitable Trust,registered under the Bombay Public Trusts Act, 1950, bearing registration No. A-1903 (BOMBAY) and thereafter, by virtue of a Trust Deed, the said trust became the owner of the suit property.

2.2 That, in 1967, Kachhiya Patel Ambalal Vadilal (now deceased) and Kachhiya Patel Arvindlal Vadilal, respondents herein, filed Regular Civil Suit No. 260/1967 before the Court of

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learned Civil Judge (J.D.), Kapadwanj, Kheda alleging that original owners have sold the suit property to them by way of a registered sale deed dated 12.07.1967 for a consideration of Rs.2,500/- and alleged that the defendant Nos. 1 to 6 made encroachment over the south-east portion of the suit property and made kachcha construction over that portion and put up shops over it and took possession of that portion. They also sought relief for permanent injunction restraining all the defendants from interference of the possession of the plaintiffs in vacant portion of the suit property and also for mesne profit. The learned trial Court granted ad-interim injunction in favour of the original plaintiffs (respondents herein) in the suit. It is the case of the petitioners that though the trial Court had passed an order of maintaining status-quo, the original plaintiffs erected wooden structure on the open land of the suit property.

2.3 That, initially the present petitioners were not joined as party in the suit, however, subsequently, they came to be joined as defendant Nos. 7 and 8.

2.4 The suit tried by the trial Court concerned and eventually, after due appreciation and evaluation of the evidence on record and hearing the arguments of both the sides, the trial Court was pleased to dismiss the suit by judgment and decree dated 27.02.1973. Being aggrieved, the original plaintiffs - respondents herein filed Civil Appeal No. 78 of 1973 before the learned District Judge, Nadiad, The said appeal came to be dismissed by the first appellate Court by judgment and order dated 22.04.1975 against which, the original plaintiffs, respondents herein preferred Second Appeal No. 407 of 1975 before this Court. This Court, vide order dated 10.01.1980 set aside the judgment and decree dated 27.02.1973 passed by the trial Court and ordered to

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remand back the matter to the trial Court concerned with certain directions.

2.5 Against the aforesaid order dated 10.01.1980 passed by this Court in Second Appeal No. 407 of 1975, the original defendant No. 1 and others, preferred Special Leave Petition (Civil Appeal No. 2477 of 1981) before the Hon'ble Apex Court. The Hon'ble Apex Court, however, by an order dated 10.09.1981 disposed of the said petition subject to one modification in the order dated 10.01.1980 passed by this Court in the aforesaid second appeal and advised this Court to call for the findings on the issues framed by this Court and then dispose of the matter in the light of those findings and directions if any thereto. Accordingly, this Court, vide order dated 11.03.1982, directed the trial Court to record findings on the issues framed by this Court, to which, the trial Court, vide order dated 31.07.1982, recorded the same. When the matter came up for hearing before this Court (Second Appeal No. 407 of 1975 with Civil Application No. 772 of 1993), it was mentioned by the learned counsel for the respondents therein - original defendants that the appellant No. 1 therein had expired on 11.05.2003. That, since no application had been filed by the heirs of original appellant No. 1, the Court, vide order dated 30.11.2007 dismissed the second appeal as abated. The original plaintiffs have not challenged the said order till date and hence, the judgment and decree of the trial Court dated 27.02.1973 attained finality. The petitioners herein - original defendant Nos. 7 and 8 filed Misc. Civil Application No. 2 of 2009 with a prayer to restore the possession of the suit property, however, the learned trial Judge, vide order 10.02.2016 directed the Registrar of Civil Court at Kapadwanj to withdraw the said application from the register of Civil Misc. Application and register the said application as Regular Execution Petition and

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accordingly, it got converted as Regular Execution Petition No. 1 of 2016, in which, subsequent to the Attachment Warrant dated 28.02.2019, on 02.03.2019, execution proceedings were carried out and possession of the suit property was handed over to the petitioners herein and the said petition came to be disposed of accordingly.

2.6 That, after execution, the petitioners since came to know that as per the city survey records, the suit property admeasures 100 sq. yards and the shop, which was handed over subsequent to the execution petition, admeasures 50.86 square yards, for remaining 49.14 square yards, the petitioners preferred Review Petition No. 25 of 2019 before the trial Court, however, the same came to be rejected vide order dated 16.04.2019 taking into consideration the provisions of section 114 as well as of Order 47 of the CPC by the learned Principal Senior Civil Judge, Kapadwanj and hence, this petition.

3. Though notice in the matter was issued in 2019, to be precise, on 04.10.2019 and is duly served upon the respondents, they have chosen not to appear before this Court, leaving no option for the Court but to proceed with the matter.

4. Rule.

5. Heard, learned Senior Advocate Shri Mihir Thakore, learned counsel with Mr. Siddhant Gujarathi and Ms. Kshama Sheth, learned advocates for the petitioners.

5.1 The learned senior counsel for the petitioners took this Court to the facts of the case and submitted that it was the case of the original plaintiffs themselves in the suit that the suit

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property being revenue survey No. 158 paiki and city survey No. 6650, admeasures 100 sq. yards, however, at the time of execution, the authorities concerned failed to take proper measurement of the suit property and handed over the possession to the present petitioners only 50.86 sq. yards, out of total 100 sq. yards. It is fairly submitted that the petitioners were also not aware of the actual measurement of the suit property which was handed over and therefore, they did not raise any concern prior to taking of the possession of the suit property, however, as soon as they came to know about the same, they approached the trial Court concerned with appropriate review petition, however, by the impugned order dated 16.04.2019, the trial Court rejected the same only on the ground that considering the provisions of section 114 as well as Order 47 of the CPC, the review petition is not maintainable in law.

5.2 Drawing attention to an order dated 31.07.1982, passed by the learned Civil Judge (S.D.), Kapadwanj, whereby, the learned trial Judge has recorded his findings qua the issues framed by this Court. He submitted that answers to the issue Nos. 3 and 4 viz. issue No. 3 - whether city survey No. 6650 existed in 1932 as a constituent part of survey No. 158? and issue No. 4 - If it existed, what was its area?, clearly substantiate the say of the petitioners as issue No. 3 is answered in affirmative and issue No. 4 is answered as 100 sq. yards. Thus, it amply clear that the suit property admeasures 100 sq. yards and accordingly, when the suit of the original plaintiffs is dismissed and decree is in favour of the petitioners, the petitioners are entitled to the suit property as per the decree and enforcement of decree is the legal right of the petitioners, however, the petitioners have not received the suit property as per the decree. He submitted that the trial Court cannot go beyond the decree. It is further submitted by the

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learned senior counsel for the petitioners that they moved the learned trial Court concerned with review application, however, the learned trial Court, without assigning any cogent reasons, only on the ground that the review application is not tenable, rejected the said application. In the circumstances, the learned senior counsel for the petitioners submitted that the learned executing Court is empowered to decide all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree and pass necessary orders even after inviting objections, if there is obstruction in the suit property etc.

5.3 It is submitted that when there are concurrent findings of two learned Courts below and when this Court has also dismissed the second appeal and when it was the case of the plaintiffs only that the suit property admeasures 100 sq. yards and when the petitioners, in the execution petition, had specifically prayed to restore the possession of the suit property namely property bearing revenue survey No. 158 paiki and city survey No. 6650 of Kapadwanj Town, admeasuring 100 sq. yards, having the boundaries as described in para-1 of the plaint to the petitioners and when the present petitioners were not aware of the actual measurement of the suit property which was handed over subsequent to the execution proceedings, it is urged that the present petition may be allowed in the interest of justice, quashing and setting aside the impugned orders.

6. Regard being had to the submissions advanced by the learned senior counsel for the petitioners and a perusal of the material placed on record, the issue involved in the present petition appears to be in a very narrow compass that is to say

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rejection of review petition by an order dated 16.04.2019. As said earlier, the learned trial Court has rejected the review petition only on the ground that looking to the provisions of section 114 and Order 47 of the CPC, the review petition found to be not maintainable.

6.1 In this regard, it would be fruitful to refer to the provisions of section 114 and Order 47 of the CPC are relevant and hence, extracted hereunder:

"114. Review.- Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."

"Order 47:

1. Application for review of judgment. - (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree

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passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[ Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. ]"

6.2 To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of section 114 CPC, it appears that the said substantive power of review under section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in O.47 R.1 CPC, which have been elaborated herein above. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in O.47 R.1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in

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the guise of power of review. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression 'any other sufficient reason' used in O.47 R.1 CPC means a reason sufficiently analogous to those specified in the Rule.

6.3 Adverting the facts of the present case, it is the case of the petitioners that only after execution of the decree, they came to know about the measurement of the suit property handed over to the petitioners and the actual measurement thereof (viz. 100 sq. yards) and accordingly, they immediately approached the concerned trial Court with review petition, however, the trial Court did not consider the said petition and rejected the same cursorily.

7. At this juncture, it would not be out of place to mention here that, as the facts go, the original plaintiffs filed a suit, which came to be dismissed, against which, an appeal was filed before the first appellate Court, which also came to be dismissed. Against the said order of the first appellate Court, the original

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plaintiffs preferred second appeal before this Court. Initially, this Court had allowed the said second appeal and framing certain issues to be decided by the trial Court, remanded the matter back to the trial Court. The said order of remand was the subject matter of challenge before the Hon'ble Apex Court, to which, the Hon'ble Apex Court did not interfere but for one modification to the effect that the High Court shall call for the findings on the issues framed by it and then dispose of the matter in the light of those findings. Accordingly, second appeal was taken up by this Court. The said second appeal came to be dismissed by order dated 30.11.2007 as abated by this Court since the appellant No. 1 had expired and the fact of death of the appellant No. 1 was accepted by learned counsel for the appellants, reserving liberty to make applications for condonation of delay, setting aside of abatement, substitution of legal heirs and restoration of the second appeal. It is also a fact, as emerged from the record that, nobody from the appellant side has approached to revive the appeal or for any other relief. Thus, upon dismissal of the second appeal, the judgment and decree passed by the trial Court dated 27.02.1973 attained finality. The execution petition against the same is disposed of vide order dated 20.03.2019. After the execution was effected, the petitioners preferred review petition on the count that the petitioners have received possession of only 50.86 sq. yards of suit property out of total 100 sq. yards, as described in the suit itself and remaining 49.14 sq. yards yet to be received. The said review petition came to be rejected by an order dated 16.04.2019 as not maintainable under section 114 and Order 47 of the CPC. It is against these orders dated 20.03.2019 and 16.04.2019, passed in execution petition as well as in the review petition respectively, the petitioners have moved this Court. Be that as it may.

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8. The suit is already decreed in favour of the present petitioners and execution is already done. The petitioners have assailed the orders passed in the execution petition as well as the order passed in the review petition therein. In the considered opinion of this Court, when the learned trial Court itself has given findings, as referred to herein above qua issues framed by this Court, more particularly, issue Nos. 3 and 4 viz. issue No. 3 - whether city survey No. 6650 existed in 1932 as a constituent part of survey No. 158? and issue No. 4 - If it existed, what was its area?, which answered as affirmative and 100 sq. yards respectively, and when it was the case of the original plaintiffs themselves that the suit property admeasures 100 sq. yards, as it appears from the papers on record, and when the decree of the trial Court has attained finality and not challenged and when it was a specific prayer of the present petitioners in the execution petition to handover the suit property as described in the suit, and further when, under section 47 of the CPC, it is provided that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit, ends of justice would meet if the matter is remanded back to the trial Court concerned for taking decision afresh in the execution petition, in accordance with law, giving opportunity of hearing to the parties.

9. Accordingly, this writ petition succeeds and is allowed accordingly. The impugned order dated 16.04.2019, passed in Review Petition No. 25 of 2019 and the order dated 20.03.2019 in Execution Petition No. 1 of 2016, passed by the learned Principal Senior Civil Judge, Kapadwanj, Kheda, are hereby set aside. The matter is remanded back to the trial Court concerned to decide

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afresh the execution petition filed the petitioners, after giving sufficient opportunity of hearing to both sides, as expeditiously as possible, preferably within a period of four months from the date of receipt of writ of this order, on its own merits and without being influenced by this order. Rule made absolute accordingly with no order as to costs.

[ A. C. Joshi, J. ] hiren