Taraben W/O Shivchanran Panna Lal ... vs Hasmukh Mohanlal Chauhan
2021 Latest Caselaw 13696 Guj

     C/SCA/8935/2013                              JUDGMENT DATED: 09/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8935 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1     Whether Reporters of Local Papers may be allowed              Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

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

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

==========================================================
       TARABEN W/O SHIVCHANRAN PANNA LAL DECD. THR.HEIRS
                            Versus
             HASMUKH MOHANLAL CHAUHAN & 1 other(s)
==========================================================
Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1.1,1.2,1.3,1.4
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1.1,1.2,1.3,1.4
MR.SUDHIR NANAVATI, LD.SR.COUNSEL FOR MS ANUJA S
NANAVATI(5229) for the Respondent(s) No. 1,2
==========================================================
    CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 09/09/2021

                            ORAL JUDGMENT

1. Rule returnable forthwith. Ms. Anuja Nanavati, learned

advocate waives service of notice of rule for and on behalf of the

respondents.

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2. Present petitioner has challenged the order dated 17 th April,

2013 passed below Exh.16 in Small Darkhast No.21 of 2011 by the

learned Additional Judge, Small Causes Court, Surat rejecting the

objections filed by the present petitioner in the Execution

Application preferred by the respondents.

3. Heard learned advocates for the respective parties.

3.1 Short facts of the present case may be summarized as under:-

That, Small Cause Civil Suit No. 60 of 1988 was filed by the

respondents against the husband of the petitioner on the ground of

arrears of rent and mesne profit. That, the petitioner was not joined

as party respondent. That, husband of the present petitioner left the

suit premises on 6th March, 1992 since then the present petitioner is

residing in the suit premises. That, suit filed by the respondents

came to be dismissed by the learned Small Cause Court vide order

on 8th April, 2005. That, respondents preferred an appeal being

Regular Civil Appeal No. 20 of 2005 against the husband of the

petitioner wherein, also present petitioner was not joined as party.

That, Appeal preferred by the respondents, came to be allowed by

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the learned Fast Track Court, Surat on 31st December, 2010.

4. Being aggrieved by the order passed by the learned Fast Track

Court, Surat in Regular Civil Appeal No. 20 of 2005, the petitioner

filed revision application being Civil Revision Application No. 119

of 2011 before this Court wherein, the present petitioner rendered

draft amendment being wife of the petitioner. That, Civil Revision

Application No. 119 of 2011 was not entertained with a clarification

that this Court has not examined the matter on merits and the

petitioner was permitted to raise all the contentions before the

Executing Court which are permissible under the law. Thereafter,

respondents filed an execution application being Small Darkhast No.

21 of 2011 before the learned Small Court Court, Surat on 14 th June,

2011 . Thereafter, when petitioner came to know about the filing of

the aforesaid application, she filed an objection in the said execution

application below Exh.16 submitting that the husband of the

petitioner left the suit premises in the year 1992 and she does not

know the whereabouts of her husband. That, in the said objections,

the respondents are residing at the ground floor of the said premises,

however, respondents had not joined the present petitioner as

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party in any of the proceedings intentionally and summons in the

appeal proceedings was also wrongly served. That, present petitioner

had also filed suit being Regular Civil Suit No. 124 of 2012 seeking

prayer for quashing and setting aside the judgement and decree

passed by the learned Civil Court in the Regular Civil Appeal No.

20 of 2005 and the hearing of the Exh.5 application was pending at

the time of filing objection below Exh. 16. That, the petitioner had

also filed suit being Regular Civil Suit No. 59 of 2012 for the

purpose of getting declaration regarding the "Civil Death" of her

husband which is pending for adjudication.

5. Learned advocate for the petitioner vehemently urged that

learned Additional Small Cause Judge, vide order dated 17.4.2013,

rejected the application filed by the present petitioner below Exh.16.

That, the impugned order passed below Exh.16 rejecting the

application preferred by the petitioner is prima facie illegal, contrary

to the provisions of the Order 21, Rule 97 to 103 of the Civil

Procedure Code, 1908. It is further submitted that the petitioner is in

possession of the disputed premises since long and she was not

joined as party to the proceedings in Small Cause Suit No. 60 of

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1988 as well as Regular Civil Appeal No. 20 of 2005. Therefore,

execution application cannot be executed against her. It is further

submitted that under Order 21 Rule 97 of CPC, when the petitioner

has resisted the prayer made by the respondents in execution

application, the executing Court was bound to proceed with and

adjudicate upon the application in accordance with the provisions

of CPC as provided in Rule 98 of Order 21 of C.P.C. It is further

submitted that Executing Court has committed grave error in not

deciding the questions raised by the petitioner in application filed

under Order 21 Rule 97 of CPC relating to rights, title or interest in

the suit properties. That, Executing Court was bound to determine

the application as petitioner was not required to file a separate suit

for the said purpose. Learned advocate for the petitioner while

referring Section 5(11)(b) of The Gujarat Rent Hotel and Lodging

House Rates Control Act submitted that present petitioner is tenant

and is in possession of the suit premises. That, after determination

of the lease, with or without the assent of the landlord, she was

denied the title under the Bombay Rent Act. That impugned order

passed by the Small Cause Court rejecting the application vide

Exh.16 is prima facie erroneous, illegal and improper. Therefore, it

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was requested by learned advocate for the petitioner to quash and set

aside the impugned order dated 17 th April, 2013 passed by learned

Additional Small Cause Judge, Surat in Small Darkashat No. 21 of

2011 below exh.16.

6. Learned Senior Advocate Mr. Sudhir Nanavati appearing for

Ms. Anuja Nanavati, learned advocate for the respondents has

strongly objected the arguments advanced by learned advocate for

the petitioner and submitted that against the judgement and order

dated 8.4.2005 passed in Small Cause Civil Suit No. 60 of 1988

instituted by the respondent for eviction of suit premises on the

ground of arrears of rent for the period of more than six months,

Regular Civil Appeal No. 20 of 2005 was preferred by the

respondents against the husband of the present petitioner namely Mr.

Shivcharan Pannalal wherein, the Appellate Court clearly observed

in para 19 that the matter was squarely covered under Section 12(3)

(a) of the Rent Act. That, the averments made by the present

petitioner in application below Exh.16 in Execution Proceedings i.e.

Small Darkhast No. 21 of 2011 were not true and correct. It is

further submitted that in the suit preferred by the respondent i.e.

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Small Cause Civil Suit No. 60 of 1988, deposition of the present

petitioner was recorded before the Court wherein, she has never

stated that her husband was expired or she was tenant in the suit

premises. That, on the contrary, it was accepted by the present

petitioner that her husband was alive. That, execution application

was preferred on 14th June, 2011 while Regular Civil Suit No. 59 of

2012 was filed by the present petitioner before the Civil Court for

the purpose of getting declaration under Section 107 and 108 of

the Indian Evidence Act on 3rd February, 2012 which is yet pending

for adjudication. That, the Court below has rightly decided the

application vide exh.16 observing that the said suit preferred by the

petitioner is still pending which, would not believe that her husband

was expired on 6th March, 1992 till final decision of the suit

preferred by the petitioner. It can be declared if suit would be

allowed from passing of the judgement. It is further submitted that

another suit was filed by the present petitioner i.e. Regular Civil Suit

No. 124 of 2012 with a request of declaration that the decree passed

in Regular Civil Appeal No. 20 of 2005 as null and void, as it was

received with fraud. It is further submitted that Regular Civil Suit

No. 124 of 2012 was also dismissed by the 21 st Additional Senior

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Civil Judge, Surat vide order dated 16th October, 2018 and which has

got finality. That, the petitioner was also remained present in the

Civil Revision Application No. 119 of 2011 before this Court. That,

she was aware with the proceedings of Small Cause Civil Suit No.

60 of 1988 and Regular Civil Appeal No. 20 of 2005. That,

provisions of Order 21 Rule 97 would not be applicable to the

present case, considering the facts of the case. It is further submitted

that the petitioner is trying to prolong the matter unnecessarily with

a view not to get the fruit of the judgment and decree passed by the

Appellate Court in favour of the respondents. That, she is not tenant

of the suit premises. That, Civil Suit No. 59 of 2012 preferred by

the petitioner is still pending. That, the statement of the petitioner

was not correct that she came into knowledge for the first time in the

executing proceedings initiated by the respondents. Learned

advocate appearing for the respondents in support of his arguments

has relied upon the decision rendered in case of Patel Prabhudas

Shankardar Versus Seth Prakashchandra Babubhai reported in

2019(O) AIJEL-HC-241619 and in case of Shivshankar Babulal

Thakor and others Vs. Thakker Ravikant Narayandas reported

in 1989(2) GLH (U.J) 29 and also the decision rendered in case of

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Babulal Vs. Raj Kumar reported in 1996 (3) SCC 154. Hence, it

was requested by learned advocate appearing for the respondents to

dismiss this petition.

7. Having considered the facts of the case and the record

produced before this Court as well as the submissions made by

learned advocates appearing for the respective parties, first of

all this Court would like to refer the decision rendered in case of

Shivshankar Babulal Thakor and others (Supra), wherein, it was

held that defendant Nos. 2 and 3 were also tenants of the suit

premises. Admittedly, no notice of termination of tenancy was

given to them, and therefore, tenancy rights were not validly

terminated. It was held that as no valid notice as required under

Section 12(2) of the Act was served upon the tenants, no decree for

eviction could have been passed. It also appears that in the decision

of the Hon'ble Apex Court rendered in case of Babulal (Supra) it is

held that:-

6. The controversy is no longer res integra. This Court in Bhanwar Lal v. Satyanarain & Anr. [(1995) 1 SCC 6] considered the controversy and had held that even an application filed under Order 21 Rule 35(3) or one filed under Section 47 would be treated as an application under Order 21 Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions

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contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. In Para 7 thereof it was held thus:

"In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25.5.1979 was made, the Court should have treated it to be one filed under Order 21, Rule 97 (1) CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances, the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21, Rules 35(3) and Order 21, Rules 101 and 102 of CPC".

7. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.

8. In Another decision of this Court rendered in case of Patel Prabhudas Shankardar (Supra), wherein, it is held that

7. In view of the above decision, it is quite clear that third party can file objection in a decree and it is the duty of the concerned trial Court to adjudicate the claims of the parties in consonance with law and the power is conferred on the Executing Court under the amended Rules to adjudicate the objections and to decide the same as that of regular trial because its order has to be treated as a decree under Order 21, Rule 103 of CPC. Now, in this case, on perusal of the material placed in the present matter, which consists of Agreement to Sell, page 125, there is recital that the first floor has been rented to Vakil Prabhudas. It also reveals from the typed copy of the

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deposition of the original plaintiff, page 163A onwards, that the plaintiff himself in his chief examination, in para 2, has averred that the first floor was in the occupation of the tenant and it was the duty of the defendant therein to get it vacated and to hand over vacant possession to the plaintiff. Therefore, prima facie, it appears that, at the relevant time, present petitioner was having tenancy rights and accordingly he raised objection before the Executing Court to decide his right of tenancy, therefore, it is necessary for him to produce certain documentary evidence. When the law requires that objection is to be decided on the line of procedure of regular suit then it is incumbent on the part of the Executing Court to permit both the sides to lead evidence and to decide the objections and to pass necessary orders, first to frame issue and then to decide objections and to pass necessary order thereon.

9. Having heard learned advocates for the respective parties,

documents produced on record which has gone through by this

Court, the question that arise for consideration is whether the

petitioner being member of family of original tenant claiming to

have been residing with the tenant at the time of leaving house can

resist the execution of decree passed against tenant being member of

the tenant family.

10. From the application Exh.16 submitted by the petitioner in

Small Execution Application No. 21 of 2011, for the first time, she

declared that Opponent had left the house on 6th March, 1992.

However, she tried to find out his whereabouts but, he was not

found. It was further submitted that the petitioner were also staying

on the upper portion of the suit premises which respondents know

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very well however, without joining her as party, wrongly they had

obtained the judgement and decree in respect of the suit premises.

As per her contention, she was staying since long in the suit

premises and her name was also entered in the Government record as

occupant. It was further contended by the petitioner that, in appeal,

in which the decree was granted, her husband was shown as tenant

and he was wrongly executed summons issued by the Court, she

was joined as party in the appeal also. However, it was known to the

respondents that her rights, interest and occupation of judgement

creditor was involved in the suit premises, with malafide intention

decree was obtained by the judgment creditor. That, Opponent-her

husband had left the suit premises since last many years and he had

no concerned with the suit premises. She was occupant having

possession of the suit premises as tenant, and therefore, judgement

and decree passed against her husband were not enforceable in the

eye of law and cannot be executed against her. It was further

contended that notice was affixed at the suit premises by bailiff of

the Court, and therefore, for the first time, she came to know that

without placing the true and correct facts before the Court, in

absence of her husband, by fraudulent manner, decree was obtained

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by the respondents. She has objected the execution petition preferred

by the respondents in a capacity of tenant as well as representative of

the original tenant-her husband. If, we consider the relevant

documents placed before the Court, it appears that Small Cause

Suit No. 60 of 1988 was preferred by the respondents against

husband of the petitioner on the ground of arrears of rent and vacate

the possession of the suit premises. Learned trial Court rejected the

prayer for vacating the suit premises prayed by the respondent but

allowed the prayer of arrears of rent vide judgement and decree

dated 18th February, 2005. The said judgment and decree was

challenged by the respondent by filing Regular Civil Appeal No. 20

of 2005 before the District Court. After hearing the parties, District

Court was pleased to allow the Regular Civil Appeal No. 20 of 2005

preferred by the respondents and judgement and decree passed by

the trial Court in Small Cause Civil Suit No. 60 of 1988 was quashed

and set aside. The defendant-original tenant was directed to vacate

the suit premises and handed over the vacant possession to the

respondents-plaintiff within a period of 3 months. It appears from

record that present petitioner-objector namely Taraben Sharma

appeared before the Court as respondents and filed her Vakalatnama.

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It also appears from the record that once, Civil Revision Application

No. 119 of 2011 was filed by the present petitioner on behalf of her

husband namely Shivcharan Pannalal before this Court was disposed

of on 23rd August, 2011. This Court [Coram:Hon'ble Mr.

K.S.Jhaveri, J] was pleased to pass the following order on 23 rd

August 2011 :-

"When the matter is called out, Mr. Majmudar, learned counsel for the applicant has tendered draft amendment. Looking to the facts of the case, it will not be proper to grant draft amendment inasmuch as the wife of the applicant was not party to the proceedings before the Court below and no such application was preferred to add her as party to the proceedings. 2. However, the learned counsel for the respondent had raised a preliminary objection regarding the maintainability of the revision application in view of the fact that the present application is affirmed by the wife of the applicant since the applicant is not available. Thus, on this ground alone, the revision is not entertained. It is however made clear that this Court has not examined the matter on merits. Hence, the application stands disposed of. Notice is discharged. Interim relief if any, stands vacated. However, it will be open for the wife of the applicant to raise all the contentions before the Executing Court which are permissible under the law. "

11. It appears from the order passed by this Court in Civil

Revision Application No. 119 of 2011 that the present petitioner also

tried to appear before this Court. As she was not party, by raising

preliminary objections regarding maintainability of the revision

application and she was wife of original defendant namely

Shivcharan Panalal, on this ground alone, Civil Revision Application

was not entertained. It is not in dispute that present petitioner was

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not party in Small Cause Civil Suit No. 60 of 1988 or in Regular

Civil Appeal No. 20 of 2005. In the application below exh.16, it is

contended by the petitioner that her husband has left the suit

premises on 6th March, 1992. However, her wife had tried to find

out her whereabouts, she was not succeeded. Written arguments

were also submitted by present petitioner in execution petition

preferred by the respondent along with deposition of herself in Small

Cause Civil Suit No. 60 of 1988. Deposition of the present petitioner

was recorded at Exh.88 in the aforesaid suit. In the cross-

examination, she had admitted that her husband was alive but she

has no idea of his whereabouts. She has further admitted that she

has no dispute with her husband. Her husband was not staying with

her since last 15-20 years as her husband had left the suit premises.

After two years from the date of filing of the suit i.e. Small Cause

Civil Suit No. 60 of 1988 on 12 th February, 1988, her husband has

left the suit premises that would be approximately in the year 1990.

In application below Exh.16 preferred by the present petitioner in

execution application, she has averred that her husband has left the

suit premises on 6th March, 1992 . Prima facie, there is reason that

present petitioner was not aware the exact date of leaving the suit

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premises by her husband. It also appears that present petitioner being

wife also remain present in the suit proceedings i.e. Small Cause

Civil Suit No. 60 of 1988. She was fully aware with the fact of the

previous Small Cause Civil Suit No. 60 of 1988. Deposition of this

petitioner in the suit was recorded on 3 rd December, 2004 wherein,

she has never stated that her husband had left the suit premises.

Even, she has not stated that she was tenant of the suit premises. In

the present application below Exh.16 also she has never stated that

her husband was expired. Husband of the present petitioner, who

was defendant in Small Cause Civil Suit No. 60 of 1988, remained

present and filed his written statement below Exh.16. Present

petitioner has also not filed any complaint in respect of leaving her

house by her husband before any authority nor has issued any

notice in newspaper. Before this Court also, Civil Revision

Application No. 112 of 2011 was filed in the name of Shivcharan -

husband of the present petitioner. Execution petition was preferred

by the respondent on 14th June, 2011. Petitioner filed Regular Civil

Suit No. 59 of 2012 under Section 107 and 108 of Indian Evidence

Act on 3rd February, 2012 wherein, she has prayed declaration that

on 6th March, 1992 or about that period "Civil Death" was occurred

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of her husband as deemed fit to the Court. Regular Civil Suit No. 59

of 2012 preferred by the present petitioner is still pending for

adjudication and therefore, it is not desirable or proper to accept the

submissions of the petitioner that her husband was expired. Prima

facie, there is reason to believe that with a view to avoid Execution

Proceedings initiated by the respondents, petitioner has filed Regular

Civil Suit No. 59 of 2012. It also appears from the record that

another Regular Civil Suit No. 124 of 2012 was also preferred by the

present petitioner for declaration that judgement and decree passed

by the respondents in Regular Civil Appeal No. 20 of 2005 is

fraudulent and illegal and declaration may be granted in her favour

as null and void. The said suit is also pending for adjudication at

present. Judgement and decree passed by the District Court in

Regular Civil Appeal No. 20 of 2005 has attained finality. The

contention raised by the present petitioner that judgment and decree

was obtained by the respondents in absence of her husband cannot

be accepted by this Court.

12. In the case on hand as discussed earlier, possession of the suit

premises was with the original tenant and her name might have

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been entered in any Government record as she is staying in the suit

premises alongwith her family. It is not the case of the petitioner

that there was any division of the suit premises in question or that

rent was being paid separately by her. Thus, tenancy being one, all

the members of family of the original tenant is residing with him, at

the time of leaving the house by the husband, decree passed in

Regular Civil Appeal No. 20 of 2005 is binding to all the members

of the family including present petitioner covered by the tenancy

Act. The position that falls is that the petitioner has no right to

resist on the ground that the decree is not binding to her. Therefore,

when the suit was filed in the year 1988 against the husband of the

petitioner who was original tenant, there was no necessity for the

landlord to implead the present petitioner or members of his family

in the suit since respondent being landlord has no cause of action for

seeking decree of recovery of possession from her. In that view of

the matter, decree under execution does not suffer from any illegality

or infirmity viewed from any angle. The petitioner has no

justification on the facts as well as in law to resist the suit premises

by the landlord. The Executing Court rightly rejected the objections

filed by the petitioner below Exh.16 against the execution of the

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decree. The decision of the Hon'ble High Court of Allahabad

rendered in case of Uday Bhan Tiwari Vs. Pashupati Colonizers

Private Limited and Ors. reported in MANU/UP/0503/2021 has

also considered the said issue and effect that as the applicant is

neither necessary party nor a proper party as after the death of

original tenant, his heirs inherited the property jointly and a decree

passed against one or some of them is binding upon other tenants.

The same view was also taken by the Hon'ble Apex Court rendered

in case of Babulal Vs. Raj Kumar reported in 1996(O) GLHEL-

SC-2370 wherein, it has held that in execution proceedings under

Order 21 of Rule 97, 98 of CPC, application of objector was

dismissed on the ground that as the objector was not dispossessed,

application under Order 21 Rule 97 of CPC was not maintainable.

Hon'ble Apex Court also held that Court ought to have given its

findings under Order 21 Rule 98 of CPC before dismissing it and

appeal was allowed.

13. In the instant case, Executing Court has given its findings in

the application preferred by the present petitioner below Exh.16 and

thereafter, it is rightly dismissed.

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14. In another judgment relied upon by learned advocate for the

petitioner of this Court rendered in case of Patel Prabhudas

Shankardas Vs. Seth Prakashchandra Babubhai reported in 2020

(2) GLH 597, wherein, it was suit for specific performance of

contract. The petitioner being third party, tenant filed objection to

decide his rights of tenancy. Application for production of

documentary evidence was filed. It was held that third party can file

objection in a decree and it is the duty of the Trial Court to

adjudicate claims of the parties in consonance with law and power as

conferred upon Executing Court under the amended Rules to

adjudicate the objections and to decide the same as that of regular

trial because its order has to be treated as a decree under Order 21

Rule 103 of CPC. In cited case, at relevant time, the petitioner was

having tenancy rights and accordingly, he raised objection before

the Executing Court to decide his right of tenancy, therefore, it is

necessary for him to produce certain documentary evidence. The

question before the Court in the cited case was of production of

documentary evidence. The prayer of the petitioner was rejected by

the trial Court without discussion and solely on the ground that as

the matter is fixed for hearing and document is filed for filling

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lacuna. The observation of the Executing Court was not

sustainable in the eye of law. The petitioner was third party was

permitted to produce documentary evidence.

15. Here, it is not the case of any documentary evidence produced

by the present petitioner, she has objected the judgement and

decree passed in favour of the respondent in respect of suit premises,

as she is claiming her rights as tenant. Considering the facts that

judgment and decree passed was against the original tenant when

petitioner was residing with her husband. She has no rights to resist

the execution proceedings initiated by the respondents.

16. Accordingly, this petition is hereby dismissed. The Order

passed below Exh. 16 in Small Darkhast No. 21 of 2011 on 17 th

April, 2013 by the learned Additional Small Cause Judge, Surat is

hereby confirmed. Interim relief granted earlier shall be vacated.

Rule is discharged.

(B.N. KARIA, J)

FURTHER ORDER

Learned advocate for the petitioner requests to continue the

interim relief granted by this Court vide order dated 20.5.2013

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passed in Special Civil Application No. 8935 of 2013.

Learned advocate for the respondent No. 2 has strongly

objected for extending the interim relief granted in favour of the

petitioner and submits that since disposal of the appeal preferred by

the respondent No.1 before District Court, respondent No.1 is unable

to get fruit of the appeal which was allowed on 31.12.2010 in favour

of the respondent No.1. Therefore, interim relief granted earlier

cannot be extended.

Considering the submissions made by learned advocates for

both the parties, it appears that the litigation was started in the year

1988 and interim relief granted by this Court in the year 2013, and

thus, it is found that the proceedings are delayed by the petitioner

therefore, the prayer of the petitioner stands rejected.

(B.N. KARIA, J) BEENA SHAH