Gujarat High Court

Jaswantlal Girdharlal Gadhiya vs Sureshchandra Revashankar Bhatt on 29 October, 2021

Bench: B.N. Karia

    C/SCA/16393/2017                             JUDGMENT DATED: 29/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16393 of 2017

                                   With

     CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2018
             In R/SPECIAL CIVIL APPLICATION NO. 16393 of 2017

                                   With

           CIVIL APPLICATION (FOR CLARIFICATION) NO. 1 of 2019
              In R/SPECIAL CIVIL APPLICATION NO. 16393 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                           NO

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy of
      the judgment ?                                                  NO

4     Whether this case involves a substantial question of
      law as to the interpretation of the Constitution of             NO
      India or any order made thereunder ?

==========================================================
            JASWANTLAL GIRDHARLAL GADHIYA & 1 other(s)
                                  Versus
          SURESHCHANDRA REVASHANKAR BHATT & 1 other(s)
==========================================================
Appearance:
MR. VIMAL M. PATEL WITH MR. SUREN B PATEL(8420) for the Petitioner(s)
No. 1,2
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2.4,2.5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2.1,2.2,2.3
VIJAY H PATEL(7361) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 29/10/2021

                             ORAL JUDGMENT

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

ORDER IN SPECIAL CIVIL APPLICATION NO. 16393 of

1. Rule returnable forthwith. Learned advocate Mr. Vijay Patel

waives service of notice of rule for and on behalf of respondent

No.1.

2. By way of present petition, present petitioners, who are the

objectors in Special Civil Execution Petition No.13 of 2014, have

challenged the order dated 25.07.2017 passed below Exh.68 by

learned 7th Additional Senior Civil Judge, Rajkot directing the

petitioners to deposit balance amount of Rs.14,00,000/- (Rs.

Fourteen Lakhs) before the Executing Court.

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

Mr.Dilipbhai Damodardas Gorasiya along with his brothers

namely (1) Kiritkumar Damodardas Gorasiya, (2) Narendrakumar

Damodardas Gorasiya and (3) Dhirendrakumar Damodardas

Gorasiya agreed to sell the land admeasuring 391.30 sq. mtrs of

City Survey No.3309 of City Survey Ward No.6 with construction

thereon (hereinafter would be referred to as "said property") to the

petitioners vide registered agreement to sell dated 09.11.2005

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

bearing Serial No.5929. Part payment of Rs.10,51,000/- was paid

by the petitioners. The sellers of the said property failed to

perform the said agreement and petitioners filed Special Civil Suit

No. 156 of 2008 before the Civil Court, Rajkot for specific

performance of the said agreement. Along with the suit,

petitioners also filed one application for temporary injunction in

the said suit, which was allowed by the trial court vide order dated

11.05.2009 restraining the original defendants from transferring or

alienating the said property to anyone by any way till final

disposal of the suit. The respondent No.1 filed Special Execution

Petition No.13 of 2014 before the trial court to execute the decree

passed in Special Civil Suit No.15 of 2006 against the respondent

No.2, legal heirs of the deceased Mr.Dilipbhai Damodardas

Gorasiya under Order 21 Rule 54 of the Civil Procedure Code. As

per the execution petition preferred by the respondent No.1,

judgment and decree was passed in his favour on 13.02.2014 and

he prayed to recover an amount of Rs.11,04,671.56 paise by

attaching the movable property as well as immovable property i.e.

"Bharat Bhuvan", situated at Tagore Road of Virani Chowk,

Rajkot of the ownership of the deceased Mr.Dilipbhai

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

Damodardas Gorasiya. The Executing Court on 31.01.2015 issued

warrant of attachment of immovable property by passing an order

below Exh.19. The present petitioners lodged their objection by

filing an application Exh.33 on 01.04.2015 before the Executing

Court inter alia praying to reject the application filed under Order

21 Rule 54 of C.P.C. by the respondent No.1. They also submitted

certain documents in support of their application vide Exh.34

dated 01.04.2015. The learned executing court was pleased to

keep this application for hearing pursuant to an order dated

20.06.2015 and at present it is pending for adjudication before the

Executing Court. The present petitioners also filed their pursis

dated 13.05.2015 at Exh.41 before the Executing Court that the

amount may be recovered from another immovable property of the

deceased respondent No.2 i.e. Mr.Dilipbhai Damodardas Gorasiya

sitauted at "Bharat Smruti" House No.8, Ramkrushna Nagar,

Rajkot. During the pendency of the application Exh.33,

respondent No.1 submitted one application Exh.68 inter alia

praying to direct the petitioners to deposit the balance amount of

consideration as per the agreement. The Executing Court was

pleased to allow the application Exh.68 preferred by the

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

respondent No.1 vide order dated 25.07.2017 directing the

petitioners to deposit an amount of Rs.14,00,000/- (Rupees

Fourteen Lakhs only) before the Executing Court out of the

balance consideration payable under the agreement. Hence, this

petition is preferred by the present petitioners under Articles 226

and 227 of the Constitution of India.

3. Heard learned advocate for the petitioners and learned

advocate for the respondent No.1. Learned advocate for the

petitioners submits that notice is duly served to the respondents

i.e. 2.1, 2.2 and 2.3 but none was appeared for and on behalf of the

respondents i.e. 2.1, 2.2 and 2.3. As none is appeared to contest

this petition for and on behalf of the other respondents, it is

submitted that presence of other respondents are not necessary to

decide this petition.

4. It is submitted by learned advocate for the petitioners that

the impugned order passed below Exh.68 dated 25.07.2017 is

without any jurisdiction, illegal and improper. That the executing

court overlooked the facts that petitioners have right over the said

property as registered agreement to sell was executed in favour of

the petitioners on 09.11.2005 to purchase the said property for

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

which suit for specific performance was pending before the trial

court and injunction was granted against the defendants including

the respondent No.2 from alienating or transferring the said

property. That the first application Exh.33 and objection raised by

the the petitioners was required to be decided on merits by the

executing court. That pursis Exh.41 passed by the present

petitioners declaring that respondent No.2 owns another property

i.e. "Bharat Smruti" House No.8, Ramkrushna Nagar, Rajkot and

decree can be executed from the amount realized by selling that

property was not considered by the Executing Court. That

observation of the Executing Court that respondent No.1 has

charge/lien over the said property inasmuch as the register of

agreement dated 09.11.2005 much prior to any order passed in

Special Civil Suit No.15 of 2006 filed by the respondent No.1

against the respondent No.2 was illegal and bad in law. It is

further submitted that though there was an injunction order passed

in favour of the present petitioners against the respondent No.2

and his brothers in Special Civil Suit No.156 of 2008, properties

in dispute cannot be put in auction by the court. That the

respondent No.1 has made his attempt before the Executing Court

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

to frustrate the registered agreement executed in favour of the

present petitioners and the suit property was agreed to be sold by

the respondent No.2 and his brothers to the petitioners. That

Special Civil Suit No.156 of 2008 is decreed by the civil court in

favour of the petitioners vide judgment and decree dated

20.09.2019. It is further submitted that readiness and willingness

of the petitioners in the execution proceedings cannot be decided

by such a way directing the petitioners to deposit the balance of

amount of agreement to sell in a decree passed in another suit, and

therefore, it was requested by learned advocate appearing for the

petitioners to quash and set aside the order dated 25.07.2017

passed below Exh.68 by learned 7th Additional Senior Civil Judge,

Rajkot in Special Civil Execution Petition No.13 of 2014

dismissing the application Exh.68 filed by the respondent No.1. In

support of his arguments, learned advocate for the petitioners has

relied upon the judgment of the Hon'ble Apex Court reported in

(2008) 14 Supreme Court Cases 258 and AIR 2014 Supreme

Court 1356.

5. Per contra, learned advocate for the respondent No.1 has

supported findings and order passed by the Executing Court dated

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

25.07.2017 below Exh.68 and submitted that there is no illegality

or error committed by the Executing Court directing the

petitioners to deposit an amount of Rs.14,00,000/- (Rupees

Fourteen Lakhs only) within a period of 60 days. It is further

submitted that present petitioners objected the proceedings of the

execution petition preferred by the respondent No.1 and auction

process of the suit property by filing their objection Exh.68. That

decree was passed in favour of the respondent No.1 against the

respondent No.2 in Special Civil Suit No.15 of 2006 on

13.02.2014. Referring the observation of the court in paragraph

No.16 of the judgment, it is submitted that respondent No.2 has

requested the court to secure his debt and sough permanent

injunction restraining the defendant not to transfer the suit

property i.e. "Bharat Bhuvan" or any part of the property under

Order 38 Rule 5 of the Civil Procedure Code. It was accepted by

the Court and surety was given by the original defendant on

25.06.2009. There was no dispute in respect of ownership of the

suit property raised by the defendant and court has observed that

defendant is liable to pay the amount of the legal dues prayed by

the plaintiff. It is further submitted that decree was passed in

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

favour of the respondent No.1 by the civil court and respondent

no.1 had lient over the suit property. The present petitioners

cannot be permitted to object in the proceedings of execution filed

by the respondent No.1 without paying the amount, which was to

be recovered by the respondent No. It is further submitted that as

per the agreement to sell executed in favour of the petitioners in

the year-2005 only Rs.10,51,000/- was paid by the present

petitioners and remaining amount was to be paid by the

petitioners. That respondent No.1 has a lien over the suit property

i.e. Bharat Bhuvan and till the amount is recovered by the

respondent No.1 as prayed in the execution proceedings, his name

would be continued. Hence, it was requested by learned advocate

appearing for the respondent to dismiss the present petition and

confirm the order dated 25.07.2017 passed below Exh.68 by

learned 7th Additional Senior Civil Judge, Rajkot in Special Civil

Execution Petition No.13 of 2014.

6. Having heard learned advocates for the respective parties

and perused the record produced by the petitioners and gone

through the contents of the respective parties, it appears that in

respect of the suit property, one agreement to sell was executed by

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

the original respondent No.2 deceased Mr.Dilipbhai Damodardas

Gorasiya along with his brothers namely (1) Kiritkumar

Damodardas Gorasiya, (2) Narendrakumar Damodardas Gorasiya

and (3) Dhirendrakumar Damodardas Gorasiya who agreed to sell

the land admeasuring 391.30 sq. mtrs of City Survey No.3309 of

City Survey Ward No.6 with construction on 09.11.2005, which

was a registered agreement. At the time of the execution of the

agreement Rs.51,000/- was paid, and thereafter, Rs.10,00,000/-

was paid by the present petitioners as the sale deed was not

executed by the sellers in favour of the petitioners, Special Civil

Suit No. 156 of 2008 was preferred by the present petitioners

before the Civil Court, Rajkot for specific performance of the said

agreement wherein application for temporary injunction was filed

vide Exh.5, which was allowed by the trial court vide order dated

11.05.2009 restraining the original defendants from transferring or

alienating the said property till final disposal of the suit. The

respondent No.1 filed one Special Civil Suit No.15 of 2006

against the respondent No.2 namely Mr.Dilipbhai Damodardas

Gorasiya to recover an amount of Rs.7,50,000/- and permanent

injunction. The said suit was decided in favour the respondent

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

No.1 vide order dated 13.02.2014 wherein paragraph No.16, it was

observed that to secure the debt of the plaintiff, it was prayed that

the defendant may not transfer the suit property i.e. "Bharat

Bhuvan" or its part situated in Virani Chowk, Tagore Marg at

Rajkot owned by the defendant. Another prayer was made by the

respondent No.1 in the suit under Order 38 Rule 5 of the Civil

Procedure Code for attachment of the property, which was

accepted by the court. On 25.06.2009, the defendant submitted the

surety. As per the observation of the court, there was no dispute

in respect of ownership of the property as the defendant was liable

to pay the amount of legal dues prayed by the plaintiff i.e.

respondent No.1. It further appears that present petitioners were

never parties in Special Civil Suit No.15 of 2006 and judgment

and decree was passed by the learned Senior Civil Judge, Rajkot

on 13.02.2014 against the only defendant namely Mr.Dilipbhai

Damodardas Gorasiya, who was one of the party in executing the

registered sale deed in favour of the petitioners in addition to his

other three brothers. It appears that respondent No.1 filed Special

Execution Petition No.13 of 2014 for execution of the decree

dated 13.02.2014 passed in Special Civil Suit No.15 of 2006

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

against the respondent No.2 for recovery of an amount of

Rs.4,00,000/- with interest @ 21% per anuum from the date of the

suit till realization of the amount. The executing court also issued

warrant of attachment of immovable property vide order dated

31.01.2015 passed below Exh.19 filed by the respondent No.1.

The petitioners filed their objection by filing their applications

Exh.33 on 01.04.2015 inter alia praying to reject the application

filed under Order 21 Rule 54 on the ground stated therein. They

also submitted their documents in support of their applications by

separate list. The application Exh.33 filed by the petitioners was

opposed by the respondent No.1 by filing his reply dated

04.04.2015 below Exh.35, thereafter, application submitted by the

petitioners Exh.33 was kept for hearing pursuant to the order

dated 20.06.2015 and at present it is pending for adjudication

before the executing court. It also appears from the record that

vide Exh.41, one pursis was passed by the present petitioners

dated 13.05.2015 bringing to notice of the executing court that

amount as prayed by respondent No.1 may be recovered from

another immovable property of the deceased respondent No.2 i.e.

Mr.Dilipbhai Damodardas Gorasiya situated at "Bharat Smruti"

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

House No.8, Ramkrushna Nagar, Rajkot. Thereafter, respondent

No.1 preferred one application Exh.68 before the executing court

inter alia praying to direct the petitioners to deposit the balance

amount of consideration as per the agreement. The said

application Exh.68 was allowed by the executing court vide order

dated 25.07.2017 directing the petitioners to deposit an amount of

Rs.14,00,000/- before the executing court. It is not in dispute that

Special Civil Suit No.156 of 2008 preferred by the petitioners

against the respondent No.2 and his brothers namely (1)

Kiritkumar Damodardas Gorasiya, (2) Narendrakumar

Damodardas Gorasiya and (3) Dhirendrakumar Damodardas

Gorasiya was decreed in favour of the present petitioners on

20.09.2019. The agreement to sell was executed, which was a

registered document in favour of the petitioners by all the

defendants in Special Civil Suit No.156 of 2008 on 09.11.2005.

Subsequent suit was filed by the respondent No.1 i.e. Special Civil

Suit No.15 of 2006 against Mr.Dilipbhai Damodardas Gorasiya

wherein petitioners were never parties. The executing court cannot

direct the present petitioners in a application submitted by the

defendant No.1 to deposit balance amount of Rs.11,04,671.56

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

paise remained to be paid by the present petitioners to the original

defendants as per the agreement to sell. The respondent No.1 can

certainly execute the decree passed in his favour in Special Civil

Suit No.15 of 2006 from the original defendant or legal heirs of

the defendant from the immovable property or movable property

as the case may be. Executing court has committed an error by

directing the petitioner to deposit an amount of Rs.11,04,671.56

paise by observing that this amount was to be paid by the

petitioners as per the agreement to sell executed by the original

defendants in favour of the present petitioners. Such a conditional

order, according to this Court is illegal and improper.

7. In the case of Kancherla Lakshminarayana versus

Mattaparthi Symala and others reported in (2008) 14 SCC 268,

Hon'ble Apex Court has observed as under:

"The terms of Order 21 Rule 63 are imperative and they declare that any order passed by the executing Court is subject to the result of such a suit. In Phul Kumari v. Ghanshyam Misra, Their Lordships of the Privy Council pointed out that the object of a suit under Section 283, Civil Procedure Code of 1882 which corresponds to Order 21 Rule 63 of the present Code is in effect to set aside a summary decision. When the claimant succeeds in getting a decree in his favour declaring his title to the property attached and that the property is not liable for attachment and sale in execution of a particular decree the

C/SCA/16393/2017 JUDGMENT DATED: 29/10/2021

executing court's power to sell the property in that execution proceedings must cease. The claimant's success in a suit under Order 21 Rule 63 ousts the jurisdiction of the executing court. If that is the result, the sale must be pronounced to be a nullity and consequently not capable of being confirmed under Order 21 Rule 92, Civil Procedure Code"

These observations will show that the Andhra Pradesh High Court not only considered the language of Rule 59 and the impact thereof as clearly displayed but also went on to consider the fact of the prior obligation regarding the objector in the property and the fact that even if the sale is effected under Rule 58, it cannot obliterate the claims of the objectors which were created prior to the sale."

8. In the case of Maya Devi v. Lalta Prasad reported in AIR

2014 Supreme Court 1356, Hon'ble Apex Court has observed as

under:

"On a conjoint reading of Order XXI Rule 58 CPC and the fasciculus of Order XXI comprising Rules 97 to 104, it becomes clear that all questions raised by the Objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the Execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order XXI proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the Court. Objection under Order XXI should be meaningfully heard so as to avoid the possibility of any miscarriage of justice."

9. In the instant case also application submitted by the present

petitioners Exh.33 is yet not decided by the executing court and

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application Exh.68 preferred by the respondent No.1 is allowed

without deciding the objections raised by the petitioners.

10. Under the circumstances, present petition requires

consideration and same is allowed. The impugned order dated

25.07.2017 passed below Exh.68 by learned 7 th Additional Senior

Civil Judge, Rajkot in Special Civil Execution Petition No.13 of

2014 is hereby quashed and set aside. Rule is made absolute to the

aforesaid extent.

11. Executing court shall decide the application Exh.33