Muljibhai Dayalbhai Goyani vs Pushpaben Popatlal Kakadiya
2022 Latest Caselaw 9286 Guj

      C/SCA/13800/2008                            ORDER DATED: 19/10/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
           R/SPECIAL CIVIL APPLICATION NO. 13800 of 2008
                               With
           R/SPECIAL CIVIL APPLICATION NO. 13806 of 2008
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                  MULJIBHAI DAYALBHAI GOYANI & 2 other(s)
                                 Versus
                     PUSHPABEN POPATLAL KAKADIYA
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Appearance:
for the Petitioner(s) No. 1.2,1.3,1.4,1.5,1.6,1.7
DECEASED LITIGANT for the Petitioner(s) No. 1,1.1
MR BM MANGUKIYA(437) for the Petitioner(s) No. 2,3
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 2,3
MR TARAK DAMANI(6089) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 19/10/2022

                               ORAL ORDER

1. These petitions are filed under Article 227 of the Constitution of India by the petitioners - judgment debtors challenging the common order passed below Exhibits 29 & 38, dated 01.09.2008 by 02nd Additional Senior Civil Judge, Surat, whereby application below Exhibits - 29 & 38 filed by the petitioners - judgment debtors requesting to dismiss the execution proceedings came to be rejected.

2. Mr. B.M.Mangukiya, learned advocate for the petitioners

- judgment debtors vehemently submitted that since suit against the petitioners - judgment debtors came to be decreed ex parte and application praying setting aside ex parte decree, which was in delay and therefore, a delay condonation application came to be preferred vide Misc. Civil Application No.56 of 2006 and Misc. Civil Application No.57 of 2006 for the purpose of restoration of a suit setting aside an

C/SCA/13800/2008 ORDER DATED: 19/10/2022

ex parte decree. According to him, the Court granted Civil Misc. Application No.56 of 2006 on a condition to deposit the decretal amount, condoning delay vide order dated 30.01.2008. Simultaneously, the same Court with an order of even date allowed the application for restoration of a suit again on a condition of depositing the decretal amount. He has further submitted that vide application Exhibit -29, they offered the amount, according to them as per the decree, Rs.1,32,000/- which Court ordered to accept the same stating to be as per the order passed by the Court, as unless the amount is deposited, they would not be able to defend themselves in the suit and therefore, Court accepted that amount of Rs.1,32,000/- vide order dated 06.05.2008. Therefore, according to the submission of Mr. Mangukiya, once that amount is accepted by the Court and it is directed to the Nazir to accept the said amount, is the sufficient compliance of the order passed by the Court in delay condonation application as also the restoration application.

3. Therefore, the common order passed below Exhibits - 29 & 38 by 02nd Additional Senior Civil Judge, dated 01.09.2008, is required to be quashed and set aside. According to his submission, once the Court has directed the Nazir to accept the said amount of Rs.1,32,000/- recording that it is as per the order of the Court, with a view to give chance to lead evidence after notice to the otherside and when they had not objected to the same, that order had become final and therefore, no such order impugned could have been passed by the 02nd Additional Senior Civil Judge, Surat. He has further submitted that the Coordinate Bench cannot go beyond the order passed on 06.05.2008.

4. Having heard Mr. Mangukiya, learned advocate for the petitioners - judgment debtors and going through the order

C/SCA/13800/2008 ORDER DATED: 19/10/2022

impugned as also the documents produced on record, it is clear that while condoning delay in praying for setting aside the ex parte decree, when Court has directed the petitioners - judgment debtors to deposit the decretal amount and when the very same order is passed even restoring the suit setting aside the ex parte decree, it was incumbent upon the petitioners - judgment debtors to deposit the entire decretal amount. Once that order is passed, the petitioners

- judgment debtors cannot request the Court to accept an amount of Rs.1,32,000/- which is the principal amount and even if the Court passes an order directing the Nazir to accept the said amount stating that it is an amount as ordered by the Court, which is contrary to the record itself and therefore, no such plea that the order passed by the coordinate Bench cannot be ignored by the Court while passing common order below Exhibits -29 & 38 filed by the petitioners - judgment debtors, can be accepted.

5. However, fact remains that the petitioners - judgment debtors have failed to deposit the entire decretal amount, as ordered by the Court, as a condition of condoning delay in praying for setting aside of an ex parte decree, the petitioners - judgment debtors cannot be heard to say that once the Court has directed the Nazir to accept Rs.1,32,000/-, as ordered by the Court, no impugned order which is passed below Exhibits - 29 & 38 by the 02 nd Additional Senior Civil Judge, Surat dated 01.09.2008 can be passed in Special Execution Application No.5 of 2006. Hence, I see no reason to entertain these petitions and they are hereby rejected. Notice is discharged in each petitions.

(UMESH A. TRIVEDI, J) Lalji Desai