Gujarat High Court
Paschim Gujarat Vij.Co.Ltd vs Govindbhai Manjibhai Vora on 20 September, 2022
Bench: Umesh A. Trivedi
C/SCA/15792/2016 ORDER DATED: 20/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15792 of 2016
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PASCHIM GUJARAT VIJ.CO.LTD.
Versus
GOVINDBHAI MANJIBHAI VORA
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Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MR AKASH K. CHHAYA, AGP for the Respondent(s) No. 2
MR. NITIN Y DIVATE(7121) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 20/09/2022
ORAL ORDER
1. This petition is filed under Article 227 of the Constitution
of India by the petitioner - original defendant challenging order
passed below Exhibit-1 in Regular Execution Application No. 7
of 2014 passed by Principal Senior Civil Judge, Dhoraji dated
05.07.2016, whereby petitioner is directed to obey the decree
passed for removal of electric poles standing on the boundary
of the field of the present respondent - plaintiff and they were
further directed to file an affidavit in compliance thereof or else
they were ordered to face the consequences thereof.
2. Heard Mr. Premal R. Joshi, learned advocate for the
petitioner. According to his submission, in this suit, they are
facing decree for removal of electric poles on the boundary of
C/SCA/15792/2016 ORDER DATED: 20/09/2022
the field of the present respondent - plaintiff. In an another suit
filed by the adjoining owner of the field, he has obtained
injunction not to remove the said pole.
2.1 He has further submitted that the said distribution line,
whereby electric poles were placed in the boundary of the field
of the respondent - plaintiff, were placed after obtaining
permission from the Collector in the year 1997.
2.2 He has further submitted that since after pretty long ime
of the decree, execution thereof is prayed for, the petitioner
has requested to reject the execution application and award
cost to the petitioner.
2.3 He has submitted that petitioner is facing a dilemma
under the decree that they are required to remove the poles
fixed on the boundary of field, which cannot now be installed
on any other direction as on the south of the land, such land
touches the Dhoraji Porbandar Highway and under the decree,
the existing lines are on the western side of the boundary and
on the other two direction, namely East and North, it is
impossible to fix the electric line.
3. Having heard learned advocate for the petitioner and
C/SCA/15792/2016 ORDER DATED: 20/09/2022
going through the impugned order as also the documents
annexed with it, it is clear that any inability under any order to
obey the present decree is the botheration of the petitioner
and not of the executing Court.
4. Once decree is passed and that judgment and decree
once challenge on all possible legal grounds having failed, the
petitioner has no option but to obey the decree. At the same
time, any suit filed by adjoining owner of a land and anything
recorded in a panchnama executed in that suit stating therein
that there are no existing electric poles in the field of the
present respondent - plaintiff, can never be considered while
executing a decree. At any rate, that Court Commissioner had
no business to state anything about the electric poles, which is
found in the boundary of field of the present respondent -
plaintiff. Even if electric polls were placed in the year 1997
after obtaining the permission from the Collector, it may be a
legal ground to defend the decree or submit the same before
the appellate Court but at both the stages, such challenge has
failed, and therefore, executing Court cannot go into it.
Whatever dilemma the petitioner is facing is for it to resolve
and not by the executing Court.
C/SCA/15792/2016 ORDER DATED: 20/09/2022
5. However, as specifically observed by the Court in para 3
of the impugned order that on an application given by the
petitioner to draw a panchnama vide Exhibit-14 before the
executing Court, which was granted and pursuant thereto,
Court Commissioner vide Exhibit-17 placed the panchnama on
record along with a rough sketch, which is executed in
presence of both the parties i.e. original plaintiff as also
original defendant. As coming out from the said panchnama as
also the rough sketch, electric poles as prayed for in a decree
and granted, are still existing on the western boundary of the
field of the respondent - plaintiff, and therefore, there is no
option for the petitioner not to obey the said decree.
Hence, this petition being merit-less, it is hereby
rejected. Notice discharged. Interim-relief granted earlier
stands vacated.
(UMESH A. TRIVEDI, J.)
Raj
