Gujarat High Court
Kirtikaben Wd/O Kanubhai ... vs Jayeshkumar Hasmukhlal Shah on 5 August, 2022
Bench: Umesh A. Trivedi
C/SCA/17676/2011 JUDGMENT DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17676 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KIRTIKABEN WD/O KANUBHAI SOMESHWAR DAVE, & 3 other(s)
Versus
JAYESHKUMAR HASMUKHLAL SHAH & 1 other(s)
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Appearance:
MR PUNAM G GADHVI(3724) for the Petitioner(s) No. 1,2,3,4
MR INDRAVADAN PARMAR(2738) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 05/08/2022
ORAL JUDGMENT
1. This petition is filed challenging an order passed by learned
Principal District Judge, Kheda at Nadiad dated 3.9.2011 whereby
execution application filed by the respondent herein against the
present petitioners who are the landlord of property in dispute
C/SCA/17676/2011 JUDGMENT DATED: 05/08/2022
came to be allowed fully with cost. Not only that, remaining
amount of mesne profit at the rate of Rs.5,000/- per month as
agreed was ordered to be deposited within a period of 6 weeks
and possession of the suit property is ordered to be handed over
to the tenant of the property of the same measurement, came to
be passed. It was also further ordered that learned trial Judge
shall take the proceedings for contempt against the opponents of
the appeal i.e. present petitioners. During the pendency of this
petition before this Court, there was no stay granted against the
appellate order by this Court. However, by way of ad-interim
relief, the petitioners were directed to pay the amount of
Rs.5,000/- per month till final disposal of the petition and were
permitted to clear the arrears within 4 weeks from that date i.e.
4.10.2012. Thus, while petition being admitted, the order of the
appellate Court so far as it relates to handing over the
possession is concerned, was never stayed by this Court. Still
however, it appears that petitioners have not obeyed the order
of the appellate Court without there being any stay granted by
any Court. It is also not clear that whether trial Court has
initiated contempt proceedings against the present petitioners or
not.
2. After taking me through the order impugned, it is
submitted that there is no decree passed for entrusting
possession to the respondent-tenant and therefore, impugned
order passed by the appellate Court is illegal and requires
interference.
3. Taking this Court to the typed copy of original decree, it is
attempted to be submitted that in failure of giving possession of
C/SCA/17676/2011 JUDGMENT DATED: 05/08/2022
the suit property to the respondent-plaintiff, they were to pay as
mesne profit of Rs.5,000/- per month and if they fail to pay it, it
may be recovered through Court, which is being paid.
4. It is further submitted that if petitioners fail to hand over
the possession, they were only granted mesne profit at the rate
of Rs.5,000/- per month and there is no decree to hand over the
possession of the same. Therefore, it is submitted that the order
impugned is required to be quashed and set aside.
5. Considering the submissions made by learned advocate for
the petitioners and going through the impugned order as also
the documents annexed with the petition, it is clear that
petitioners are not deliberately reading the portion of the decree
which specifically states that if the judgment debtor i.e. present
petitioners fail to hand over the possession, plaintiff is entitled to
have the possession thereof. The innovative idea found by the
learned advocate for the petitioners that he can get that
possession by filing another suit and there is no decree passed at
all, however, he forgets to look at the decree passed as it is,
which is ordered pursuant to a compromise agreement entered
into between the parties wherein, it is stipulated that failure of
handing over of possession by the petitioners, the respondent-
plaintiff is entitled to the possession thereof. There is no need to
file another suit thereafter for any possession. As such, suit is
decreed in terms of the compromise entered into between the
parties which stipulates handing over the possession and/or
failure thereof to have possession. Therefore, the submission
that decree itself is not executable at all, so far as it relates to
possession, is wholly misconceived. Though, later part of typed
C/SCA/17676/2011 JUDGMENT DATED: 05/08/2022
copy of original decree is not read but it is exhaustive decree
passed and unnecessary time is being whiled away seeking
adjournment to produce consent terms, if at all he was to rely on
it, it should have been produced since the year 2011 and after
sufficient opportunity granted even by this Court during this
sitting, no adjournment can be asked for, that too, as of right.
6. However, looking at the impugned order passed by the
appellate Court which also takes note of the decree passed and
held in para-6, the pursis was given that they were to handover
the premises but it is not done. It is very clearly held by the
appellate Court that the executing Court has gone behind
consent decree, which executing Court cannot, in my view, the
said finding recorded by the appellate Court is supported by the
decree itself and I see no reason to interfere with the said
finding.
7. However, if no proceedings in contempt as ordered by the
appellate Court is initiated so far, the trial Court is directed to
initiate same promptly and see that it is concluded as early as
possible.
8. In view thereof, this petition is rejected. Rule discharged.
(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA
