Mahesh Govind Trivedi vs Decd. Bhagwanji Govindji Trivedi ...
2021 Latest Caselaw 14216 Guj

     C/SCA/12938/2021                               ORDER DATED: 16/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12938 of 2021

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                      MAHESH GOVIND TRIVEDI
                               Versus
            DECD. BHAGWANJI GOVINDJI TRIVEDI THROUGH LHS
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Appearance:
MR SN SHELAT, SENIOR ADVOCATE WITH MR SHIVANG M SHAH(5916)
for the Petitioner(s) No. 1
MS SONIA S SHAH(10150) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1,1.1,1.1.1,1.1.2,1.2,2,3,4,5,6
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                              Date : 16/09/2021

                               ORAL ORDER

1. By preferring this petition, under Article 227 of the

Constitution of India and under Sections 47 and 151 of the

Code of Civil Procedure, 1908 (hereinafter referred to as "the

CPC" for short) read with Order 21 of the CPC and the

Execution Petition under Order 21 Rule 11, the present

petitioner has prayed for the following relief(s):

"(a) The Hon'ble Court may be pleased to give direction to Principal Civil Judge, Mandvi to decide and dispose off the Talim Darkhaat no.7 of 2017 within a period of 3 months as petitioner is senior citizen.

(b) Pending the hearing and final disposal of the petition this Hon'ble Court be pleased to pass an order and direction to Principal Civil Judge, Mandvi to decide the Talim no.7

C/SCA/12938/2021 ORDER DATED: 16/09/2021

of 2017 within a period of 3 months;

(c) Any other and further reliefs as deemed fit in the interest of justice may kindly be granted."

2. Heard Mr.S.N. Shelat, learned Senior Advocate appearing

with Mr.Shivang M. Shah, learned advocate for the petitioner.

3. Mr.S.N. Shelat, learned Senior Advocate for the petitioner

has submitted that the Execution Petition preferred by the

present petitioner i.e. Regular Talim No.7 of 2017 is pending

since long without any adjudication. It is further submitted

that the judgment and decree was passed in First Appeal

N.2453 of 2012 on 05.12.2013. It is further submitted that in

First Appeal No.2453 of 2012, transaction done by late

Mr.Bhagwanji Trivedi in respect of the land in favour of the

defendants was set aside as prayed in Special Civil Suit No.86

of 2007. It is further submitted that the order of allowing First

Appeal No.2453 of 2012 passed by this Court was challenged

by those defendants before the Hon'ble Apex Court by filing

SLP No.7184 of 2014 which was also dismissed vide order

dated 07.05.2014. It is further submitted that the entire right

claimed by the defendants in the property of Smt. Ramalaxmi

C/SCA/12938/2021 ORDER DATED: 16/09/2021

Ravishankar Trivedi came to an end. It is further submitted

that Testamentary Suit was also decided in favour of the

petitioner vide judgment and order dated 07-08/07/2016. It is

further submitted that purported beneficiaries had sought to

intervene in the Testamentary Suit and claimed their rights on

the basis of the documents executed by Mr.Bhagwanji Trivedi

in their favour and also claimed existence of earlier Will which

was not probated and hence, they claimed caveatable interest.

That on the basis of the said claim, the defendants took out

an application by way of Chamber Summons No.39 of 2013

which was rejected by the High Court of Bombay vide order

dated 10.06.2013. That the said order of the Chamber

Summons was also carried in appeal and the Division Bench

of the Bombay High Court rejected the same by a reasoned

order dated 11.09.2015 by rejecting the claim made by the

purported beneficiaries having caveatable interest. That

during the pendency of Execution Petition No.7 of 2017, some

of the private persons objected and filed Special Civil

Application No.7071 of 2018 before this Court. That the

petitioner has already approached the Supreme Court by way

of filing Special Leave to Appeal against the interim order

passed by this Court granting stay of the Execution Petition

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and the Hon'ble Apex Court, vide order dated 06.08.2018 in

Special Leave to Appeal No.19935 of 2018, observed that "The

impugned order being an interim one and we have been informed by

the learned Senior Counsel that the matter is now coming up for

hearing before the High Court on 15 th September, 2018, we request

the High Court not to adjourn the matter and adjudicate the same by

passing appropriate orders in accordance with law. " It is further

submitted that this Court, vide order dated 11.03.2019,

dismissed the petition as well as the Civil Application for

joining of the party. That the petitioner submitted a detailed

application before the Executing Court on 09.02.2021 to

decide the application of the petitioner on urgent basis as he

is a senior citizen and lying on the death bad. That the matter

was again adjourned by the Trial Court. Hence, it was

requested by learned Senior Advocate that in the interest of

justice, Talim Application No.7 of 2017 is required to be heard

expeditiously. In support of his arguments, learned Senior

Advocate for the petitioner has relied upon the judgment of the

Hon'ble Apex Court in the case of Rahul S. Shah Vs.

Jinendra Kumar Gandhi and others, decided on

22.04.2021 passed in Civil Appeal Nos.1659-1660 of 2021.

C/SCA/12938/2021 ORDER DATED: 16/09/2021

4. Having considered the issue involved in the present

petition and the prayer made by the petitioner to expedite

Talim Application No.7 of 2017 pending before the Executing

Court, this Court did not deem it fit to issue notice to the

respondents herein. It also appears that the previous

proceedings as well as First appeal No.2453 of 2012 was

decided vide order dated 05.12.2013 by this Court and the

judgment and decree passed in Special Civil Suit No.86 of

2007 was reversed. The proceedings before the Hon'ble Apex

Court were also disposed of. With the aforesaid observations,

as argued by learned advocate for the petitioner, Talim

Application No.7 of 2017 would require to be disposed of

expeditiously. The Hon'ble Apex Court in the case of Rahul S.

Shah Vs. Jinendra Kumar Gandhi and others (supra) has

observed in Paragraph No.42 in respect of the execution

proceedings as well as guidelines as under:

"42. All Courts dealing with suits and execution proceedings shall mandatory follow the below-mentioned directions:

1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order in relation to third;

2. party interest and further exercise the power under

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Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.

3. In appropriate cases, where the possession in not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

4. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.

5. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.

6. The Court must, before passing the decree, pertaining to

7. delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.

8. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.

9. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in

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appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.

10. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application (s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

11. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.

12. The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.

13. Under section 60 of CPC the term "...in name of the judgment-debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

14. The Executing Court must dispose of the Execution Proceedings within six months from the date of the filing, which may be extended only by recording reasons in

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writing for such delay."

5. Considering the peculiar facts and circumstances of the

case, the Executing Court is directed to decide and dispose of

expeditiously the application Exh.107 submitted by the

present petitioner as well as Talim Application No.7 of 2017,

preferably within a period of six months from the date of

receipt of this order.

6. With the above observations, present petition stands

disposed of.

(B.N. KARIA, J) rakesh/