Gujarat High Court

Gujarat State Fertilizers And ... vs Lhs Of Decd. Viharibhai Fulabhai ... on 29 April, 2023

Bench: Sandeep N. Bhatt

     C/SCA/39/2023                                           ORDER DATED: 29/04/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 39 of 2023
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 42 of 2023
==========================================================
        GUJARAT STATE FERTILIZERS AND CHEMICALS LTD.
                            Versus
      LHS OF DECD. VIHARIBHAI FULABHAI PATEL, LH OF DECD
                NARSHINBHAI VIHARIBHAI PATEL
==========================================================
Appearance:
MR MIHIR JOSHI, SENIOR ADVOCATE WITH MR KUNAL VYAS FOR
GANDHI LAW ASSOCIATES(12275) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
MR HRIDAY BUCH, for the Respondent(s) No.
1.1,1.2,1.3,2.1,2.2,3.1,3.2,4,5,6
MS SUMAN MOTLA, AGP for the Respondent(s) No. 7
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 29/04/2023

                         COMMON ORAL ORDER

1. These petitions are filed for quashing and

setting the impugned Warrant of Attachment dated th 10.10.2022 issued by learned 17 Additional Senior Civil

Judge, Vadodara in Exe.LAR No.23 of 2022 and Exe.LAR

No 22 of 2022 respectively.

2. The brief facts leading to filing of these

petitions are as such that the Special Land Acquisition

Officer passed an award dated 28.9.1992 for the lands

acquired by the petitioner company in Land Reference

C/SCA/39/2023 ORDER DATED: 29/04/2023

Cases which was challenged for enhancement of

compensation before the District Court, Vadodara. The th said Reference Cases were allowed by the 14 Additional

Senior Civil Judge, Vadodara vide order dated 31.8.2018

and enhanced the amount of compensation. It is averred

in the petitions that no notice was served to the

petitioner company regarding the said proceedings.

3. It is averred that thereafter the Execution

proceedings were filed for execution of the judgment and

order dated 31.8.2018, in which the learned civil Court,

Vadodara issued the impugned Warrant of Attachment of

movable properties of the petitioner company. Hence,

these petitions are filed.

4. Heard learned senior advocate Mr.Mihir Joshi

assisted by learned advocate Mr.Kunal Vyas for the

petitioner, learned advocate Mr.Hriday Buch for the

private respondents and learned AGP Ms.Suman Motla

for respondent-Special Land Acquisition Officer.

5. Learned senior advocate Mr.Joshi has raised

essentially two important contentions; firstly, by drawing

C/SCA/39/2023 ORDER DATED: 29/04/2023

my attention to the cause title of the execution

proceedings, that it is mentioned therein that General

Manager, Gujarat State Fertilizers Company, Polymer

Unit, Ranoli, Ta.Dist.Vadodara and notice to be served

through the Collector, Vadodara, and submitted that as

per the provisions of Order 29 Rules 1 and 2 of Code of

Civil Procedure, 1908 (`CPC' for short), the notice is not

effectively served on the present petitioner and secondly,

by drawing attention to the provisions to Order 21 Rule

22 of CPC and submitted that though the execution

proceedings are filed after almost four years from the

date of award, no notice is issued or served on the

present petitioner.

6. Learned senior advocate Mr.Joshi relied on the

judgment in the case of Satyanarain Bajoria and another

V/s Ramnarain Tibrewal and another, reported in (1993) 4 SCC 414, more particularly, paragraph 13 therein, and submitted that in absence of effective service of notice to

the petitioner, the impugned order passed by the

Executing Court against the present petitioner is required

to be interfered with by this Court by exercising

supervisory jurisdiction under Article 227 of the

C/SCA/39/2023 ORDER DATED: 29/04/2023

Constitution of India and it is not in consonance with

law.

7. Per Contra, learned advocate Mr.Buch for the private respondents has strongly objected to the

submissions made on behalf of the petitioner and

submitted that notice is issued on 2.7.2022 by the

Executing Court and therefore it cannot be said that no

notice is issued prior to passing of the impugned order.

However, it is not clear from the record that notice is

served and therefore he has made a further statement

that the petitioner being a government company and

notice is served through Collector, it can be considered

as proper service and therefore there is no reason for this Court to interfere with the impugned order.

8. Learned senior advocate Mr.Joshi submitted

that the petitioner is not a government company, as

submitted by learned advocate Mr.Buch for the private

respondents, and in actual sense, it is not government

company. In support of the contention, he relied on the

judgment in the case of M/s Shalimar Rope Works Ltd.

V/s M/s Abdul Hussain H.M.Hasanbhai Rassiwala and

C/SCA/39/2023 ORDER DATED: 29/04/2023

Others, reported in (1980) 3 SCC 595, which pertains to Order 29, Rule 2(b) of CPC.

"Order 29 of CPC reads as under:

"1. Subscription and verification of pleading. In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

2. Service on corporation. Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served ___

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business."

Order 21 Rule 22 of CPC reads as under:

22. Notice to show cause against execution in certain cases.__(1) Where an application for execution is made __

(a) more than one year after the date of the decree, or (b) against the legal representative of a party to the decree, 1 [or where an application is made for execution of a decree

C/SCA/39/2023 ORDER DATED: 29/04/2023

filed under the provisions of section 44A,] the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:

Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgmentdebtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.

(2) Nothing in the foregoing subrule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice."

9. Considering the rival submissions made at the

bar and considering the provisions of Order 29 Rule 1 of

CPC, it clearly transpires that there is violation of

C/SCA/39/2023 ORDER DATED: 29/04/2023

necessary procedure about the service of notice to the

corporation or company and on this count only that no

notice is served as required under the law to the

petitioner, the interference of this Court is required as it

amounts to causing prejudice to the rights of the present

petitioner and depriving it to represent its case.

10. Article 227 of the Constitution of India reads

as under:

"227. [(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.] (2) Without prejudice to the generality of the foregoing provision, the High Court may--

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be

C/SCA/39/2023 ORDER DATED: 29/04/2023

inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

11. Considering the above facts and circumstances

of the case, these petitions are allowed. The impugned th Warrants of Attachment 10.10.2022 issued by learned 17

Additional Senior Civil Judge, Vadodara in Exe.LAR

No.23 of 2022 and Exe.LAR No 22 of 2022 respectively

are quashed and set aside. The amount deposited before

the Registry of this Court pursuant to the order dated 3.1.2023 passed by coordinate Bench of this Court be

transferred to the Executing Court within a period of

one week from today. It is appropriate to observe that

the petitioner may appear in the execution proceedings,

raise all necessary contentions and make prayers, which

shall be considered by the Executing Court as

expeditiously as possible after giving opportunity of