Rashida Ibrahim Shaikh W/O Nashir ... vs Dakshaben Chandrakant ...
2022 Latest Caselaw 627 Guj

      C/MCA/1082/2018                                   ORDER DATED: 19/01/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/MISC. CIVIL APPLICATION NO. 1082 of 2018
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         RASHIDA IBRAHIM SHAIKH W/O NASHIR MUSTAFA BELIM
                              Versus
              DAKSHABEN CHANDRAKANT NAGARSHETH
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Appearance:
MR. MEHUL SHAH, SENIOR ADVOCATE WITH MR MANAN A SHAH(5412)
for the Applicant(s) No. 1
NIDHI MANAN SHAH(9033) for the Applicant(s) No. 1
MR. D.M. DEVNANI, AGP, (1) for the Opponent(s) No. 5,6
MR CJ VIN(978) for the Opponent(s) No. 1
MR NASIR SAIYED(6145) for the Opponent(s) No. 4
NIYATI N VAIDYA(7663) for the Opponent(s) No. 1
NOTICE UNSERVED(8) for the Opponent(s) No. 2
UNSERVED EXPIRED (N)(9) for the Opponent(s) No. 3
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 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                 Date : 19/01/2022

                                  ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This contempt proceeding has been initiated for violation of order dated 21.02.2006 of temporary injunction granted or restraining third respondent from alienating the suit property. The said order of temporary injunction granted by the trial court was confirmed on 10.05.2006. The said order of temporary injunction was granted in favour of the plaintiff - complainant in suit filed by her for specific performance against respondent No.3. The said suit came to be decreed on 23.04.2008. During this interregnum period i.e. after the order of temporary injunction was passed on 21.02.2006 and before the decree in the suit was passed on 23.04.2008, the third respondent being well aware of the order of temporary injunction, is

C/MCA/1082/2018 ORDER DATED: 19/01/2022

said to have executed a sale deed in favour of first respondent on 31.03.2008 and the said sale deed undisputedly has been executed by the first respondent unto herself as power of attorney holder of respondent No.

3. It is thereafter respondent No. 1 is said to have executed sale deed in favour of respondent No. 4 on 13.06.2008. This Court has already observed vide order dated 01.12.2021 that there would be no cause of action for proceeding against fourth respondent for alleged violation of order dated 21.02.2006 and 10.05.2006 on account of said order not being against fourth respondent.

2. Pursuant to the decree dated 23.04.2008, passed in the suit for specific performance, the complainant - applicant had initiated execution proceedings to enjoy the fruits of the decree. On account of the respondents having failed to comply with the decree, and the judgment and decree of specific performance having been affirmed by jurisdictional Court in Appeal No. 25 of 2008 by judgment and decree dated 04.05.2012 which was also affirmed in Second Appeal No. 148 of 2012 disposed of on 01.10.2012 confirming the judgment and decree passed by the trial court and these orders having been confirmed by the Hon'ble Apex Court in Special Leave Petition No. 8578 of 2013 by order dated 08.05.2013, it has to be examined whether contempt proceedings should be proceeded or not. The Executing Court through Court Commissioner got executed the sale deed in respect of the property for which an order of temporary injunction had been passed and the said sale deed was executed in favour of the decree holder namely the complainant herein. Thus, the order of

C/MCA/1082/2018 ORDER DATED: 19/01/2022

temporary injunction having got merged with the order of final decree and final decree having been executed, continuation of contempt proceedings would not arise.

3. That apart, we notice that there is a bald assertion in the contempt petition at paragraph 2.7 to the effect that the power of attorney holder namely the respondent no. 1 who acted as power of attorney holder of respondent no. 3 had got executed a sale deed unto herself. This does not indicate about there being any order of temporary injunction operating against respondent no. 1 or the third respondent against whom temporary injunction was granted, had informed the first respondent of such order of temporary injunction was operating. However, learned Senior Advocate Mr. Mehul Shah appearing for the complainant has drawn our attention to para 2.9 of the petition to buttress his arguments that respondent no. 1 was completely aware of the orders passed by the District Court since he has filed various application as power of attorney of respondent No. 3 and also as purchaser. Mere filing of the applications or his participation in the suit by itself would not be the deciding factor or tilting factor in favour of the complainant to establish that the order of temporary injunction which was granted on 21.02.2006 and confirmed on 10.05.2006, which was operating against respondent no. 3 was well within the know how of the first respondent. For this reason also, we are not inclined to continue the contempt proceedings.

4. That apart the decree having been executed and the sale deed in respect of the property in respect of which temporary injunction was operating having been executed in favour of complainant and now title of said property having

C/MCA/1082/2018 ORDER DATED: 19/01/2022

stood or vested with the complainant, continuation of present proceeding would not arise. Though Mr. Shah, learned Senior Advocate would contend, and rightly so, that there would be two sale deeds in existence namely the sale- deed which had already been executed by the respondent No. 3 through her power of attorney in favour of respondent no. 1 and unto himself and sale-deed executed by 1 st respondent in favour of 4th respondent by itself would not be a ground in the present contempt proceedings to pass any order or direction. It would be in the fitness of things to permit the petitioner to urge or prosecute her claim for nullifying the said sale deed executed by respondent No. 1 in favour of respondent No. 4 in appropriate proceedings and the observations made by us hereinabove, is only for the limited purpose of closing the contempt proceedings and shall not be understood as having expressed opinion on merits of the sale-deed executed by respondent No. 1 in favour of respondent No. 4. It is made clear that in the event of complainant initiating any proceedings before the jurisdictional Court, without being influenced by any of the observations made herein, the claim or prayer of the complainant shall be independently examined by such Court.

5. With these observations, contempt proceedings stand dropped.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) AMAR SINGH