Dilipbhai Bhagirathbhai Jaiswal vs Secretary, Ghanshyamnagar ...
2022 Latest Caselaw 6916 Guj

      C/SCA/10508/2015                                  ORDER DATED: 03/08/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

   R/SPECIAL CIVIL APPLICATION NO. 10508 of 2015
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       DILIPBHAI BHAGIRATHBHAI JAISWAL & 1 other(s)
                         Versus
  SECRETARY, GHANSHYAMNAGAR CO-OPERATIVE SOCIETY
======================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1,2
MR RASESH H PARIKH(3862) for the Respondent(s) No. 1
MR.HEMANG H PARIKH(2628) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                            Date : 03/08/2022
                                ORAL ORDER

1. This petition is filed under Article 227 of the Constitution

of India, challenging the order dated 30.04.2015 passed by 8 th

Additional Civil Judge and JMFC, Nadiad in Regular Execution

Petition No. 28 of 2014, whereby execution application

preferred by the society for executing a decree passed in

Regular Civil Suit No. 138 of 1992, came to be partly allowed,

ordering removal and demolition of encroachment on the open

land or common plot situated adjacent to land bearing survey

No. 2180 of the society, by the present petitioners - judgment

debtors.

2. Mr. Vaibhav A. Vyas, learned advocate for the petitioners

- judgment debtors, submitted that once an execution

application came to be filed and it came to be disposed of

C/SCA/10508/2015 ORDER DATED: 03/08/2022

recording a compromise, whereby petitioners - judgment

debtors paid Rs. 60,000/- to the society, the decree could not

have been executed thereof against them. It is further

submitted that the decree is passed on 29.10.1996 and

execution petition came to be filed in the year 2014, and

therefore, it is beyond the period of limitation, and therefore,

the Court could not have allowed the execution application,

ordering removal and demolition of encroachment of the

petitioners by appointing Court Commissioner.

3. Having heard Mr. Vaibhav A. Vyas, learned advocate for

the petitioners as also the learned Counsel for the respondent,

it appears that the decree came to be passed, declaring the

open land or common plot situated adjacent to land bearing

Survey No. 2180 of the plaintiff - society, on which the

petitioners - original defendants had constructed the house, is

of exclusive ownership and possession of the society and

neither defendants nor any other person has any right, title or

interest of any nature in the same. At the same time, the

construction of a compound wall on the said open land or

common plot of the society was held to be illegal and by

perpetual injunction, the petitioners - original defendants in the

suit were permanently restrained from constructing further, the

compound wall, on the said open land or common plot of the

C/SCA/10508/2015 ORDER DATED: 03/08/2022

plaintiff - society and they were permanently restrained from

raising any construction of any nature, whatsoever, on the

same or on the said open land or common plot of the society.

4. It is further clear from the facts that on earlier occasion,

when compromise was entered into between the society and

the petitioners, Rs. 60,000/- were paid by the petitioners

towards the satisfaction of the decree and the said execution

application filed at the relevant time came to be dropped. It is

also not in dispute that subsequently, the petitioners filed a suit

for recovering the very said amount of Rs. 60,000/-, with

interest, joining the then Secretary of the society in his

individual capacity as party defendant, whereby the decree in

that suit came to be passed and the amount of Rs. 1,32,000/-

including interest, came to be paid by the society in satisfaction

thereof. Thus, it is clear that on failure of the compromise by

way of amount being repaid to the petitioners - original

defendants with interest, in their suit, decree even otherwise

became enforceable from the payment made to them. Not only

that, in view of Article 136 of the Limitation Act, when a decree

is passed in the nature of perpetual injunction and when it is

sought to be enforced or executed, there is no period of

limitation provided for.

C/SCA/10508/2015 ORDER DATED: 03/08/2022

5. Therefore, in any view of the matter, the order impugned

passed in the execution application cannot be said to be

beyond the period of limitation and there is no illegality or

irregularity found, and therefore, while exercising jurisdiction

under Article 227 of the Constitution of India, I see no reason to

interfere with the same. Hence, this petition is rejected.

Notice discharged. Ad-interim relief granted earlier, if any,

stands vacated.

(UMESH A. TRIVEDI, J.) Raj