Bhavnagar District Cooperative ... vs Nareshkumar Udesingbhai Mori
2023 Latest Caselaw 7247 Guj

                                                                                   NEUTRAL CITATION




    C/SCA/7314/2018                                  ORDER DATED: 03/10/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 7314 of 2018

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            BHAVNAGAR DISTRICT COOPERATIVE BANK LTD
                             Versus
                 NARESHKUMAR UDESINGBHAI MORI
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Appearance:
MRS YOGINI V PARIKH(2163) for the Petitioner(s) No. 1
MS NOOPUR V PARIKH(11248) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                               Date : 03/10/2023

                                ORAL ORDER

Though served, none has remained present for the respondent.

Heard learned Advocate for the petitioner. The learned Principal Civil Judge, Vallbhipur, Bhavnagar has passed the following order in Execution No.16 of 2017 below Exh.1.

"Execution No:16/17 ORDER BELOW EXHIBIT -1 The applicant has filed the present execution application against the judgment debtor for the recovery of the amount of Rs 14,373/- The applicant had earlier filed an execution application bearing no. 1/2011 in which the present judgment debtor had deposited the whole decreetal amount in the court itself and the same has already been received by the present applicant. The said execution application bearing no 1/2011 has already been dispossed off in the lok adalat dated 09/09/2017.

The present judgment debtor has also filed the 'pursis'

NEUTRAL CITATION

C/SCA/7314/2018 ORDER DATED: 03/10/2023

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to deposit the decreetal amount in the court and the same was allowed.

In view of the above facts and circumstances and the record of the case, I am of the considered opinion that the present applicant is not entitled to recover any further amount from the present judgment debtor as the applicant has already received the whole decreetal amount in the execution no.1/2011 and therefore, I pass the following order: ORDER The present execution application bearing no. 16/17 is hereby ordered to be" dismissed as already setted in the lok adalat dated 09/09/2017."

The impugned order itself is erroneous on more than one reason. Firstly, in Lok Adalat in view of Section 20 of the Legal Services Authority Act, the Court cannot adjudicate any issue or decide the issue; but can record the settlement arrived at between the parties qua the dispute. In the present case, learned Principal Civil Judge, Vallbhipur, Bhavnagar adjudicate the issue believing that the applicant has already received the whole decreetal amount in execution application no.1 of 2011. Therefore, Execution Petition is not maintainable. This finding is unjust and against the principle of law. In Lok Adalat, the learned Principle Judge, Vallbhipur, Bhavnagar had no jurisdiction to decide this aspect. It can be decided only in regular course of hearing. To be noted that, judgment creditor has not filed any pursis for withdrawal of the Darkhast; yet overreaching the jurisdiction the learned Principle Civil Judge, Vallbhipur, Bhavnagar has disposed of the execution on the purshis of judgment debtor clear and apparent error arrived by learned Court below. Secondly, the Court cannot decide on the

NEUTRAL CITATION

C/SCA/7314/2018 ORDER DATED: 03/10/2023

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pursis of the judgment debtor that decreetal amount is deposited and hence execution is not maintainable. The Court below totally forget the principle of O.21 R.1 and 2 of the Civil Procedure Code whereupon in money decree generally the interest part is adjusted towards the deceetal amount and then the principal amount. This issue has been totally allowed to go by the learned Principle Civil Judge, Vallbhipur, Bhavnagar. This is second error on the part of learned trial Court.

In view of above finding, the impugned order does not survive; accordingly it is quashed and set aside. Execution No.116 of 2017 is restored to file of Civil Court,Vallbhipur, Bhavnagar. The proceedings of the execution shall be heard and decided in accordance with the provisions of law; without being influenced by the passing of present order.

With the above observations and directions, present petition stands disposed of.

(J. C. DOSHI,J) sompura