Shree Gadhiyanagar Cooperative ... vs Radhakishanbhai Godhumal Ahuja
2022 Latest Caselaw 8547 Guj

      C/SCA/15070/2015                        ORDER DATED: 27/09/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 15070 of 2015
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     SHREE GADHIYANAGAR COOPERATIVE SOCIETY LIMITED
                            Versus
            RADHAKISHANBHAI GODHUMAL AHUJA
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
                         Date : 27/09/2022
                           ORAL ORDER

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

India by the petitioner - judgment debtor - original defendant in

the suit challenging an order passed by the executing Court - 12 th

Additional Senior Civil Judge, Rajkot, dated 04.09.2015 below

Exhibit-53 in Execution Application No. 1804 of 2006, whereby an

application of the decree holder i.e. the respondent herein praying

for attachment warrant of movable property to the extent of

Rs. 54,25,160/- came to be issued.

2. Mr. Jamshed Kavina, learned advocate for Mr. S.P. Majmudar,

learned advocate for the petitioner - judgment debtor, submitted

that prayer for issuance of attachment warrant of the amount

mentioned in it was replied by the petitioner, which has not been

considered by the executing Court.

C/SCA/15070/2015 ORDER DATED: 27/09/2022

2.1 He has further submitted that amount for which the warrant

is to be issued is not as per the decree and the calculation made

by the Jantri is also not proper as at what Jantri rate and of which

year the said calculation is done, and therefore, the order

impugned, issuing attachment warrant under Order XXI Rule 30 of

the Code of Civil Procedure, 1908 (hereinafter referred to as "the

Code") is required to be interfered with.

3. However, having heard learned advocate for the petitioner -

judgment debtor as also going through the impugned order and

the documents annexed with the petition, it is clear that the

judgment and decree dated 02.07.2001 is yet not fully satisfied.

After filing of the execution proceedings in the year 2006, there

appears several objections, to the execution, raised by the

petitioner - judgment debtor. As coming out from the impugned

order itself, vide Exhibit-35, petitioner - judgment debtor objected

to the execution itself on the ground that the judgment creditor is

not entitled to have any relief as prayed for, and therefore, the

execution itself is required to be rejected. The executing Court vide

common order dated 31.05.2014 passed below Exhibit-31 along

with other application Exhibit-36 and 45 rejected the said

application along with two other applications, referred to

hereinabove. Therefore, the whole challenge to the execution

C/SCA/15070/2015 ORDER DATED: 27/09/2022

proceeding itself, having come to an end and the said order is not

challenged, any challenge to an order issuing attachment warrant

under Order XXI Rule 30 of "the Code" cannot be entertained,

more particularly, when as per decree, Jantri vide Exhibit-26 was

produced and not objected to showing the rate of the land in

question at the rate of Rs. 8,000/- per square yard, the said

contention is required to be rejected outright. Not only that, if that

was not the correct Jantri rate, whether it was the recent or

existing one at the relevant time even that objection was also not

raised and rightly so, if at all, it was the correct Jantri rate of the

relevant year when the decree is passed, the petitioner - judgment

debtor would have surely produced the Jantri, which was existing

as on the date of the judgment and decree passed. Therefore, any

attempt to thwart the execution, which is on a conclusion, is

required to be viewed very seriously.

3.1 No valid argument is made to interfere with the order issuing

attachment warrant under Order XXI Rule 30 of "the Code" for an

amount as prayed therein. When the original judgment and decree

was also challenged by the petitioner - judgment debtor and the

said challenge failed up to the High Court, there remains nothing

to be interpreted, as sought to be canvassed by the petitioner -

judgment debtor whether the Jantri rate was as on the date of the

C/SCA/15070/2015 ORDER DATED: 27/09/2022

judgment and decree or not, which was surely not objected to

when that warrant came to be issued, the said contention is

required to be rejected outright.

3.2 Hence, I see no reason to interfere with the impugned order

passed by the executing Court dated 04.09.2015 below Exhibit-53

in Execution Application No. 1804 of 2006, and therefore, this

petition is rejected.

Rule discharged. Interim-relief, granted earlier, stands

vacated.

3.3 Learned advocate for the petitioner - judgment debtor,

submitted that while admitting the main petition, petitioner was

directed to deposit Rs. 4 Lacs within six weeks from that date and

it has been deposited before the executing Court. Accordingly, the

executing Court may issue fresh attachment warrant, giving set-off

of that amount, if already deposited, as per order passed below

Exhibit-53.

(UMESH A. TRIVEDI, J.) Raj