Legal Heir Of Deceased Ladhiben @ ... vs Sudhirbhai Ranchodlal Tripathi
2021 Latest Caselaw 15660 Guj

     C/SCA/11357/2021                              ORDER DATED: 05/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11357 of 2021

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  LEGAL HEIR OF DECEASED LADHIBEN @ MANEKBAI PRUTHBIGAR GUSAI
                        JAYABEN RAMNIKAGAR GUSAI
                                    Versus
                    SUDHIRBHAI RANCHODLAL TRIPATHI
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Appearance:
MS. SHIVANGI M RANA(7053) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
                   Date : 05/10/2021
                    ORAL ORDER

1. Documents produced by the petitioner are taken on record.

2. By preferring this petition, petitioner has challenged the

order dated 22.03.2021 passed below Exh.116 by Principal Senior

Civil Judge, Bhuj, Dist­Kutchh in Regular Execution Petition No.10

of 2004.

3. Short facts of the present case may be summarized as

under:

Regular Civil Suit No.164 of 1988 was filed by the

respondent, which was allowed. The petitioner had preferred

Regular Civil Appeal No.130 of 2005 before the District Court,

Kutchh which was also dismissed vide order dated 15.10.2018.

Against the said judgment and order, petitioner preferred Second

Appeal No.64 of 2019 before this Court, which was dismissed by

C/SCA/11357/2021 ORDER DATED: 05/10/2021

this Court vide order dated 23.10.2019 and the orders passed by

the Lower Court and First Appellate Court were confirmed.

Execution proceedings before the Trial Court were initiated by the

respondent No.5 as per the averments made by the petitioner,

therefore it was registered as Regular Civil Execution Petition

No.10 of 2004 with a prayer to issue the warrant under the

provisions of Order 21 Rule 35 of the Code of Civil Procedure, 1908

to get the possession of the property. The application preferred by

the respondent No.5 was allowed and warrant under Order 21 Rule

35 of the C.P.C was issued against the petitioner. Present petitioner,

being dissatisfied with the order passed below Exh.116 dated

22.03.2021, has approached this Court by way of this petition.

4. Heard learned advocate for the petitioner.

5. It is submitted by learned advocate for the petitioner that

impugned order is erroneous, perverse and contrary to the record

of the present case as the respondent has no locus or authority to

initiate the execution proceedings. That respondent was never a

party to the suit proceedings and no authority was granted to

respondent No.5­ Shailesh Trivedi to initiate execution proceedings.

It is further submitted that summons was not properly made to

Bhagvanagar Revanagar, who was a party to execution proceedings

C/SCA/11357/2021 ORDER DATED: 05/10/2021

and hence, he could not remain present in the proceedings and

order is passed in his absence. It is further submitted that an

application Exh.70 was filed and same was not decided and before

that, impugned order is passed by the Executing Court. It is further

submitted that decree holder had moved an application to join

other trustees in place of trustees on record of the case at Exh.112,

however, such application was not allowed and the same was

withdrawn on 22.03.2021. That there are other trustees of trust

and they are not included and the impugned order was passed

below Exh.116 in absence of the trustees. Hence, it is requested by

learned advocate for the petitioner to quash and set aside the

impugned order dated 22.03.2021 passed below Exh. 116 by the

learned Principal Senior Civil Judge, Bhuj, Dist­Kutchh in Regular

Execution Petition No.10 of 2004.

6. Having heard learned advocate for the petitioner and

contents of the application below Exh. 116 preferred by the decree

holder as well as the the impugned order, it appears that in Regular

Civil Suit No. 164 of 1998, judgment and decree were passed by

the learned Senior Civil Judge, Bhuj, Dist­Kachchh in favour of the

respondent/original plaintiff. The judgment debtor/petitioner

preferred Regular Civil Appeal No.130 of 2005 before the District

C/SCA/11357/2021 ORDER DATED: 05/10/2021

Court at Bhuj, Kachchh, which was also dismissed by the District

Court at Bhuj, Kachchh. Being dissatisfied with the judgment and

order passed in Regular Civil Appeal No.130 of 2005, petitioner

approached this Court by preferring Second Appeal No. 64 of 2019,

which was also dismissed by this Court. Thereafter order passed by

this Court in Second Appeal No.64 of 2019 was not challenged

before the Hon'ble Apex Court. It further appears that in an

application below Exh.116 preferred by the judgment creditor/

decree holder, request was made to hand over vacant possession of

the suit premises by the Court as there was every possibility to

occupy the suit premises by any lady member or misuse the law.

Arguments were heard by the court. It was one of the argument

before the Executing Court from the petitioner that Mr. Shailesh

Vasant Trivedi was not the party of the original suit and has filed

the present application, and therefore, this application is not

tenable as he was not trustee of the trust, and therefore, he has no

right to file present application. It further appears that learned

Executing Court considered the Resolution of the trust produced

vide Mark 100/2 wherein his name was reflected as a Vice

President of the Trust. Referring Section 2(3) of the C.P.C., it was

further observed that the " decree holder" means any person in

C/SCA/11357/2021 ORDER DATED: 05/10/2021

whose favour a decree has been passed or an order capable of

execution has made. Therefore, it was held that it is not necessary

that only the party of the suit is said to be a decree holder and the

applicant who was a Vice President of Trust was entitled for the

decree, which was passed in favour of the Trust. Therefore, warrant

under Order 21 Rule 35 of the C.P.C. (Form­11) for removing the

Judgment Debtor from the possession of the suit property was

issued vide order dated 22.03.2021. It further appears that in

Execution Petition No.10 of 2004, objector, the petitioner was

joined as legal heir of the original defendant Smt. Ladhiben @

Manekbai Pruthbigar Gusai as per the order passed below Exh. 9 on

31.03.2005. On 05.07.2004 while passing the final order by the

Trial Court suit was allowed and defendant Nos.1/1 and 1/2 were

directed to hand over the vacant possession of the suit property to

the plaintiff as well as defendant Nos.3.1 to 3.2. Present petitioner

being a defendant Nos. 1/1 along with defendant No.1/2 were

directed to pay mense profit at the rate of Rs.100/­ only for use and

occupation of the suit premises to the plaintiff trust. It was further

observed that the defendant Nos. 3/1 and 3/2 had handed over

the suit premises to the plaintiff, and therefore, no proceedings

were required to be carried out against them.

C/SCA/11357/2021 ORDER DATED: 05/10/2021

7. Defendant No. 1/1 (present petitioner) had produced an

affidavit of his evidence stating that he was interested in the suit

premises. To avoid the issue of barring the necessary parties, she

was jointed as a party accordingly. As the decree was passed

against the present petitioner and appeals preferred by the

judgment debtor before the District Court was also dismissed as

well as the Second Appeal preferred before this Court. There is no

error committed by the trial court in passing the impugned order

dated 22.03.2021 in Regular Execution Petition No. 10 of 2004

below Exh.116.

8. The present petitioner, being a legal heir of the original

defendant cannot resist the execution proceedings initiated by the

decree holder being a legal heir of the original defendant separately

against whom decree for eviction of suit premises was passed. The

decree passed by the Civil Court would be binding to the present

petitioner as she being a legal heirs of the deceased.

9. Considering the legal position, this Court has not deemed it

fit to issue any notice. Hence, this petition is dismissed as in limine.

(B.N. KARIA, J) SUYASH