Gujarat High Court
Dhanjibhai Lallubhai vs Heirs Of Decd. Amratbhai ... on 26 October, 2021
Bench: B.N. Karia
C/SCA/16103/2021 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16103 of 2021
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DHANJIBHAI LALLUBHAI
Versus
HEIRS OF DECD. AMRATBHAI DEVCHANDBHAI PATEL BEING
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Appearance:
MR AMIT V. THAKKAR FOR MR. HIREN R PANDYA(8760) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1,1.1,1.2,1.3,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 26/10/2021
ORAL ORDER
Present petitioner, who is the original defendant in Small
Civil Suit No. 126 of 2006 and the Appellant in Regular Civil
Appeal No. 110 of 2018, has challenged the legality and
validity of the order dated 6th October 2021 passed below
application Ex. 25 in Small Execution Petition No. 146 of
2019.
Heard learned advocate for the petitioner.
Considering the issue involved in this petition of issuing
possession warrant of the suit property by the trial court in
Execution Petition and rejecting the objections preferred by the
present petitioner vide order dated 6th October 2021 to decide
this petition involving the issue, no notice is required to be
issued to the other side.
Learned advocate for the petitioner has submitted that in
Small Civil Suit No. 126 of 2006, trial Court passed a decree in
C/SCA/16103/2021 ORDER DATED: 26/10/2021
favour of the respondent/plaintiff vide order dated 28th
September 2018. That, Regular Civil Appeal No. 110 of 2018
was preferred by the petitioner before the learned District
Court, which is pending for adjudication. That, meanwhile in
Small Execution Petitioner No. 146 of 2019 was preferred by
the respondent praying for possession of the suit property and
execution of the judgment and order dated 28.09.2018
wherein the respondent filed an application Ex. 25 under
Order 21 Rule 35 and 36 of the Code of Civil Procedure
(Hereinafter referred to as "the Code") praying for issuance of
warrant of taking possession of the suit property. That,
objections were filed by the present petitioner (Annexure-A) as
the Regular Civil Appeal No. 110 of 2018 was pending.
However, Executing Court rejected the objections preferred by
the petitioner below application Ex. 25 and passed an order of
issuance of possession warrant of the suit property. That, being
aggrieved by the said order, petitioner has preferred an
application Ex. 87 seeking to stay of the order and trial court
vide order dated 6th October 2021 granted 10 days time. That,
impugned order issuing possession warrant against the
petitioner is clearly illegal and erroneous as the appeal itself is
pending for adjudication before the concerned District Court.
That, if the possession warrant would be executed by the court,
purpose of filing the appeal by the petitioner would be
C/SCA/16103/2021 ORDER DATED: 26/10/2021
infructuous and without deciding the issue involved in the
appeal preferred by the present petitioner, warrant can not be
executed. In support of his arguments, learned advocate for the
petitioner has relied upon the judgment referred in 2010(4)
SCC 802.
Having considered the facts of the present case and
submissions made by learned advocate for the petitioner, it
appears that in Small Civil Suit No. 126 of 2006 preferred by
the respondent/landlord, decree was passed in favour of the
respondents/landlord by the court below vide judgment and
order dated 28.09.2018. The present petitioner preferred an
appeal challenging the judgment and order passed by the court
below being Regular Civil Appeal No. 110 of 2018. It is clear
from the record that an Appeal was preferred by the present
petitioner with a request to set aside the impugned judgment
and decree passed in Small Civil Suit No. 126 of 2006 on 28 th
September 2018. Case history of the RCA No. 110 of 2018
pending before District Court, Surat is produced by the
petitioner which is taken on record at the request of the
petitioner. Thereafter, in Small Execution Petition No. 146 of
2019, Respondents filed an application Ex. 25 under Order 21
Rule 35 and 36 of the Code praying for issuance of warrant for
taking possession of the suit property. The present petitioner
objected the relief sought for by the respondents in their
C/SCA/16103/2021 ORDER DATED: 26/10/2021
application Ex. 25. Learned Trial Court rejected the objections
preferred by the present petitioner and passed order below Ex.
25 for issuance of possession warrant of the suit property.
Thereafter, it appears that vide application Exh. 27, present
petitioner requested to stay the impugned order to challenge
the same. The learned Executing Court, vide order dated 6 th
October 2021, was pleased to stay the order for a period of 10
days. Undisputedly, the judgment and decree passed in Small
Civil Suit No. 126 of 2006 dated 28th September 2018 has been
challenged by the present petitioner in Regular Civil Appeal
No. 110 of 2018. During the pendency of the appeal preferred
by the present petitioner, warrant of possession was issued by
the Executing court by passing an order below application Ex.
25. As issue itself is pending with the first Appellate Court in
respect of the judgment and decree passed in Small Civil Suit
No. 126 of 2006, it would be in the fitness of justice to decide
first the appeal ie.. Regular Civil Appeal No. 110 of 2018
preferred by the present petitioner. Hon'ble Apex Court in
2010(4) SCC 802, in similar facts, directed not to execute the
eviction decree till pending and disposal of the First Appeal
pending before the court below.
Considering the peculiar facts of the case, the impugned
order dated 6th October 2021 passed below Exh. 25 in Small
Execution Petition No. 146 of 2019 shall be suspended for a
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period of 4 (Four) months from the date of passing of this
order.
Learned First Appeal Court shall decide Regular Civil
Appeal No. 110 of 2018 in accordance with law. The present
petitioner, being the appellant in Regular Civil Appeal No. 110
of 2018, shall cooperate in proceedings of Regular Civil Appeal
before the first Appellate Court and will not seek any
adjournment.
With aforesaid directions and observations, present
petition stands disposed of.
The order dated 6th October 2021 passed below
application Ex. 25 in Small Execution Petition No. 146 of 2019
shall be suspended subject to final outcome of the Regular Civil
Appeal No. 110 of 2018.
(B.N. KARIA, J)
K. S. DARJI
