Gujarat High Court
Nitin Chandrakant Gajjar vs Nareshkumar Natwarlal Modi on 4 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 126 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SECOND APPEAL NO. 126 of 2025
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NITIN CHANDRAKANT GAJJAR & ANR.
Versus
NARESHKUMAR NATWARLAL MODI & ORS.
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Appearance:
MR. AADIT R SANJANWALA(9918) for the Appellant(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 1
REFUSED SERVED (N)(10) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
1. The present second appeal has been filed under the provisions of
Section 100 of the Code of Civil Procedure, 1908 ('the Code' for short)
being aggrieved by the order dated 03.03.2025 passed by the 2nd
Additional District Judge, Surat in Regular Civil Appeal No.8 of 2024.
2. For the sake of brevity, the parties are referred to as per their
original status before the appellate Court in Regular Civil Appeal No.8 of
2024 filed under the provisions of Order XXI Rule 103 of the Code as
their objection submitted in Execution Petition No.15 of 2001 was
dismissed by Court vide order dated 19.12.2023.
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3. The brief facts arising in the present second appeal are that;
3.1 The father of respondent No.1 viz. late Natwarlal modi had filed
Arbitration Suit No.443 of 1982 against Yogi Krupa Cooperative
Housing Society Ltd., before the Joint Registrar and the Board of
Nominees of Cooperative Society Surat, Division, Surat, Vide an award
dated 08.03.1988, partly allowed the said Arbitration Suit No.443 of 1982
and the father of the respondent No.1, i.e. the plaintiff of Arbitration Suit
No.443 of 1982 was declared owner of property having Block No.41 of
Yogi Krupa Cooperative Housing Society Ltd. By the said order, the
defendant of said suit were restrained to transfer or assign the said Block
No.41 and were also directed to allot the said block to respondent no.1.
3.2 Though the said award is passed on 08.03.1988, the respondent
No.1 is unable to execute and reap its fruit for years together. The
execution proceedings are pending since the year 2001 as the present
appellant had filed obstruction in the execution proceedings by way of
claiming that the appellants have purchased the property in the year 1981,
and it is the case of the appellants that their predecessor-in-title were also
put in possession of the suit property in the year 1981 and the
predecessor-in-title had become shareholder and member of the society
and thereby the present appellant objected to the execution proceedings.
3.3 As earlier an order was passed below Exh. 1 in Execution Petition
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No.15 of 2001, dated 06.12.2017, the said order was challenged before
this court by way of filing Special Civil Application No.4756 of 2018,
wherein while disposing the said Special Civil Application by an order
dated 28.01.2020, the Coordinate Bench had quashed and set aside the
order dated 06.12.2017 and directed the Executing Court to hear the
decree holder as well as the objector and to follow the procedure as
envisaged under Order XXI Rule 97 of the Code. The coordinate Bench
of this Court had also given liberty to Executing Court of hearing the
decree holder as well as the objection of the appellant and also to lead
evidence, and even had given an opportunity to the objections to give a
detailed objection in the Execution Petition No.15 of 2001. Thereafter,
the Executing Court passed an order dated 19.12.2023 rejecting the
objections filed by the appellants and directed the objectors to handover
the peaceful and vacant possession of the property to respondent no.1.
3.4 Being aggrieved by the said order passed by the Executing Court,
Regular Civil Appeal No.8 of 2024 was filed wherein by an order dated
3.3.2025 the said appeal has been dismissed. Being aggrieved by the said
order, the present Second Appeal has been filed.
4 Learned senior advocate Mr.Rashesh Sanjanwala with learned
Advocate Mr.Aadit Sanjanwala has mainly argued that the order passed
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by the Executing Court is contrary to settled legal principles relating to
Execution under Order XXI of the Code. It has also been argued that the
award that has been passed in arbitration proceedings is with respect to
allotment of the suit property to respondent No.1 and the said award does
not grant possession of the disputed property to respondent No.1.
Moreover, it has also been argued that the possession of the suit property
was always with the present appellants and there is neither any decree nor
an award is passed directing the applicants to handover the peaceful and
vacant possession of the disputed property to respondent No.1.
4.1 Learned senior advocate Mr. Sanjanwala has also argued that the
separate suit had to be filed by respondent No.1 to get the possession of
the disputed property from the appellants and the same could not have
been granted by the Executing Court. The learned senior advocate has
also argued that the Executing Court could not have gone beyond the
award, which has been passed in Arbitration Suit No.443 of 1982. The
said award is only with respect to respondent No.1 being an allottee of
Yogi Krupa Cooperative Society. Learned senior advocate has also
argued that once the order under Order XXI Rule 36 of the Code is
executed, the question of handing over physical possession of the
disputed property would not arise.
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4.2 It has also been argued that after the matter was remanded back by
the High Court by an order dated 28.01.2020 passed in Special Civil
Application No.4756 of 2018, the Executing Court did not frame issues
and no oral evidence was led before the Executing Court and therefore
also the said order is required to be quashed and set aside. Therefore, in
view of the substantial questions of law that are suggested in the memo of
appeal, the present second appeal be admitted and the order passed by the
Executing Court in Execution Petition No.15 of 2001 and the order
passed by the first appellate court dated 03.03.2025 in Regular Civil
Appeal No.8 of 2024 be stayed.
5. Having heard learned senior Advocate for the appellants, the
relevant provisions of the Code are required to be considered, which this
Court apt to reproduce hereinunder for ready reference.
Section 47 reads as follows:
47. Questions to be determined by the Court
executing decree.
(1) All questions arising between the parties to the
suit in which the decree was passed, or their
representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be
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determined by the Court executing the decree and
not by a separate suit.
(3) Where a question arises as to whether any
person is or is not the representative of a party, such
question shall, for the purposes of this section, be
determined by the Court.
Explanation 1.-- For the purposes of this section, a
plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed
are parties to the suit.
Explanation II.-- (a) For the purposes of this
section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a party
to the suit in which the decree is passed; and
(b) all questions relating to the delivery of
possession of such property to such purchaser or his
representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of
the decree within the meaning of this section."
Order XXI, Rule 35 reads as follows:
"35. Decree for immovable property.-
(1) Where a decree is for the delivery of any
immovable property, possession thereof shall be
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delivered to the party to whom it has been adjudged,
or to such person as he may appoint to receive
delivery on his behalf, and, if necessary, by
removing any person bound by the decree who
refuses to vacate the property.
(2) Where a decree is for the joint possession of
immovable property, such possession shall be
delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming
the beat of drum, or other customary mode, at some
convenient place, the substance of the decree.
(3) Where possession of any building on enclosure is
to be delivered and the person in possession, being
bound by the decree, does not afford free access, the
Court, through its officers, may, after giving
reasonable warning and facility to any woman not
appearing in public according to the customs of the
country to withdraw, remove or open any lock or
bolt or break open any door or do any other act
necessary for putting the decree-holder in
possession."
Order XXI, Rule 97 reads as follows:
97. Resistance or obstruction to possession of
immovable property:-
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(1) Where the holder of a decree for the possession
of immovable property or the purchaser of any such
property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of
the property, he may make an application to the
Court complaining of such resistance or obstruction.
2) Where any application is made under sub-rule
(1), the Court shall proceed to adjudicate the upon
the application in accordance with the provisions
herein contained."
Order XXI, Rule 98 reads as follows:
98. Orders after adjudication.
(1) Upon the determination of the questions referred
to in rule 101, the Court shall, in accordance with
such determination and subject to the provisions of
sub-rule (2),-(a) make an order allowing the
application and directing that the applicant be put
into the possession of the property or dismissing the
application; or
(b) pass such other order as, in the circumstances of
the case, it may deem fit.
(2) Where, upon such determination, the Court is
satisfied that the resistance or obstruction was
occasioned without any just cause by the judgment-
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debtor or by some other person at his instigation or
on his behalf, or by any transferee, where such
transfer was made during the pendency of the suit or
execution proceeding, it shall direct that the
applicant be put into possession of the property, and
where the applicant is still resisted or obstructed in
obtaining possession, the Court may also, at the
instance of the applicant, order the judgment-debtor,
or any person acting at his instigation or on his
behalf, to be detained in the civil prison for a term
which may extend to thirty days."
Order XXI, Rule 99 reads as follows:
"99. Dispossession by decree-holder or purchaser :-
(1) Where any person other than the judgment-
debtor is dispossessed of immovable property by the
holder of a decree for the possession of such
property or, where such property has been sold in
execution of a decree, by the purchaser thereof, he
may make an application to the Court complaining
of such dispossession.
(2) Where any such application is made, the Court
shall proceed to adjudicate upon the application in
accordance with the provisions herein contained."
Order XXI, Rule 100 reads as follows:
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"100. Order to be passed upon application
complaining of dispossession.
Upon the determination of the questions referred to
in rule 101, the Court shall, in accordance with such
determination,-
(a) make an order allowing the application and
directing that the applicant be put into the
possession of the property or dismissing the
application; or
(b) pass such other order as, in the circumstances of
the case, it may deem fit."
Order XXI, Rule 101 reads as follows:
"101. Question to be determined:-
All questions (including questions relating to right,
title or interest in the property) arising between the
parties to a proceeding on an application under rule
97 or rule 99 or their representatives, and relevant
to the adjudication of the application, shall be
determined by the Court dealing with the application
and not by a separate suit and for this purpose, the
Court shall, notwithstanding anything to the
contrary contained in any other law for the time
being in force, be deemed to have jurisdiction to
decide such questions."
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Order XXI, Rule 103 reads as follows:
"103. Orders to be treated as decrees.
Where any application has been adjudicated upon
under rule 98 or rule 100 the other made thereon
shall have the same force and be subject to the same
conditions as to an appeal or otherwise as if it were
a decree."
5.1 Therefore, in the present case, the objection
that has been taken by the appellant are under the
provisions of Order XXI Rule 97 of the Code, as the
obstruction application is filed in the execution
proceedings the said decree could not be executed in
the normal manner by obtaining warrant for
possession under Order XXI rule 35 of the Code
and, therefore, for removal of such obstruction, the
provisions of Order XXI Rule 97 of the Code need to
be considered by the Executing Court, and it is only
after hearing the appellants the Executing Court
found that the resistance and obstruction was
occasioned without just cause by the appellant and
the said obstruction was removed as per provisions
of Order XXI Rule 98 of the Code. While deciding
the objection, all questions including questions
relating to right, title or interest in the property
arising between the parties to a proceeding on an
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application under Order XXI Rule 97 of the Code
has to be determined by the Court dealing with the
application. The Executing Court, while deciding the
said application is required to hold full fledged
inquiry to determine all questions more particularly
as stated in Order XXI Rule 101 of the Code.
5.2 While deciding an application under Order
XXI Rule 97 of the Code, the Executing Court
decides all the disputes between the party and if
there is an obstruction and resistance to possession
of the property, the same can be decided and
adjudicated by the very Executing Court and a
separate suit is not required to be filed by the decree
holder.
5.3 In the present case, the Executing Court has
considered all relevant material on record. The
Court has also taken into consideration the
objections filed by the appellants. The Executing
Court, while deciding the objections of the
appellants, has also taken into consideration the
Civil Suit No.685 of 2005 filed by the objectors
herein. In the said civil suit, the appellants had
sought for a relief to declare the appellant to be the
owner of the disputed property and restrain the
respondent from causing any obstruction, hindrance
to the peaceful possession of the said suit of the
disputed property and restraining respondent No.1
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from taking the peaceful possession of the suit
property. In the proceedings of Execution Petition
No.15 of 2001, the trial court framed following
issues vide Exhibit:-95
"(1) Whether the plaintiff proves that the suit
property has been inherited by the plaintiff and the
plaintiff is in possession of the suit property being
heirs of Chunilal Nathulal Gajjar i.e. the
grandfather of plaintiff no.2 from the date of
purchase of the disputed property on 11.10.1981 and
after the death of grandfather of the plaintiff no.2 ?
(2) Whether the plaintiff proves that defednant
has got decree in Execution Petition No.443 of 1992
in his favour fradulently?
(3) Whether the plaintiff have paid necessary
court fees stamp?
(4) Whether the plaintiff is entitled to the reliefs
as prayed for by him in the suit?
(5) What is the judgment and decree?"
And after giving finding on all the issues and after taking into
consideration the oral evidence of the parties to the suit, the civil suit filed
by the appellants herein is dismissed. Therefore, the disputes and the
claim of the objectors has been adjudicated by a separate suit and the
same is also taken into consideration by the Executing Court while
deciding the objection filed by the appellant. The Executing Court, while
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adjudicating the disputes, has also taken into consideration the fact of the
claim of objectors having purchased the property. The Court has also
taken into consideration the right of the objectors with respect to their
ownership in the disputed property. The court has also taken into
consideration the interest of the objectors in the suit property and after
determining all the rights of the objectors, the Court has passed the order.
5.4 Moreover, the objections that were filed by the appellants herein
were also required to be rejected as the said claim of the objectors has
already been adjudicated in the Civil Suit filed by the objectors wherein
also the issue which has been raised in the present execution has been
adjudicated and determined by the trial court and therefore also, the
objections in the present execution proceedings are filed without any
substance and in a mechanical manner to obstruct the respondent no.1 to
ensure that respondent no.1 is unable to reap the fruits of the decree and,
therefore, the same has rightly been rejected by the Executing Court and
confirmed by the Appellate Court.
5.5 The Executing Court has considered the averments made in the
application filed by the appellants. While deciding an application under
section 47 read with Order XXI Rule 101 of the Code, the court has to
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decide all questions relating to right, title or interest in the disputed
property.
While determining a question under section 47 of the Code, the Executing
Court cannot go beyond the decree and question the correctness of the
same. Therefore, the issue which have been raised by the parties during
the adjudication of the suit cannot be determined by the Executing Court
as such adjudication may undermine the decree.
5.6 In this regard, the judgement reported in 2025 Livelaw SC 293,
will be of assistance more particularly paras no.62, 63 and 68 of the said
judgment.
"62. A harmonious reading of Section 47 with Order XXI
Rule 101 implies that questions relating to right, title or
interest in a decretal property must be related to the execution,
discharge or satisfaction of the decree. The import of such a
reading of the provisions is that only matters arising
subsequent to the passing of the decree can be determined by
an executing court under Section 47 and Order XXI Rule 101.
Such reasoning is reinforced by the decisions of this Court in
C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1 SCC
191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul
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Rehman reported in (1970) 1 SCC 670, wherein it has been
held that while determining a question under Section 47, an
executing court cannot go behind the decree and question the
correctness of the same.
63. What flows from the position of law, as afore stated, is
that the issues that ought to have been raised by the parties
during the adjudication of the original suit cannot be
determined by the executing court as such adjudication may
undermine the decree itself. This Court in Rahul S. Shah v.
Jinendra Kumar Gandhi reported in (2021) 6 SCC 418 has
held that the benefit of Section 47 cannot be availed to
conduct a retrial causing failure of realisation of fruits of the
decree. The relevant portion of the judgment is reproduced
below:
"24. In respect of execution of a decree, Section 47 CPC
contemplates adjudication of limited nature of issues
relating to execution i.e. discharge or satisfaction of the
decree and is aligned with the consequential provisions
of Order 21 CPC. Section 47 is intended to prevent
multiplicity of suits. It simply lays down the procedure
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and the form whereby the court reaches a decision. For
the applicability of the section, two essential requisites
have to be kept in mind. Firstly, the question must be the
one arising between the parties and secondly, the dispute
relates to the execution, discharge or satisfaction of
the decree. Thus, the objective of Section 47 is to prevent
unwanted litigation and dispose of all objections as
expeditiously as possible.
25. These provisions contemplate that for execution of
decrees, executing court must not go beyond the decree.
However, there is steady rise of proceedings akin to a
retrial at the time of execution causing failure of
realisation of fruits of decree and relief which the party
seeks from the courts despite there being a decree in
their favour. Experience has shown that various
objections are filed before the executing court and the
decree-holder is deprived of the fruits of the litigation
and the judgment-debtor, in abuse of process of law, is
allowed to benefit from the subject-matter which he is
otherwise not entitled to.
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26. The general practice prevailing in the subordinate
courts is that invariably in all execution applications, the
courts first issue show-cause notice asking the judgment-
debtor as to why the decree should not be executed as is
given under Order 21 Rule 22 for certain class of cases.
However, this is often misconstrued as the beginning of a
new trial. For example, the judgment-debtor sometimes
misuses the provisions of Order 21 Rule 2 and Order 21
Rule 11 to set up an oral plea, which invariably leaves no
option with the court but to record oral evidence which
may be frivolous. This drags the execution proceedings
indefinitely.
27. This is antithesis to the scheme of the Civil
Procedure Code, which stipulates that in civil suit, all
questions and issues that may arise, must be decided in
one and the same trial. Order 1 and Order 2 which relate
to parties to suits and frame of suits with the object of
avoiding multiplicity of proceedings, provides for joinder
of parties and joinder of cause of action so that common
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questions of law and facts could be decided at one go."
(Emphasis supplied)
68. In our considered view, the aforesaid by no stretch of
imagination can be construed to be a legal right of
possession existing independently from the title of the
vendors which has now stood transferred to the
appellants. It is nothing but a case of apparent collusion
between the vendors and the respondent Nos. 1 and 2 to
deprive the appellants from availing the fruits of the
decree in their favour."
6. In the present case, the independent claim of the appellants have
already been decided in Regular Civil Suit No.685 of 2005 and the
Executing Court also has taken into consideration all the objections while
deciding the Execution Petition No.15 of 2001 and therefore, there cannot
be a re-trial of the adjudication that has already been taken place by the
Executing Court and in Regular Civil Suit No. 685 of 2001. If the same is
permitted it will be causing a failure of realisation of fruits of the decree
in favour of respondent No.1. Moreover, the provisions of section 47 of
Code is intended to prevent multiplicity of proceeding.
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7. It is required to be noted that in Second Appeal, the scope is very
limited and the Court cannot re-appreciate the evidence. In the case of
Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the
Hon'ble Apex Court has observed as under:-
"11. This Court, time without number,
pointed out that interference with the
concurrent findings of the courts below
by the High Court under Section 100
CPC must be avoided unless warranted
by compelling reasons. In any case, the
High Court is not expected to
reappreciate the evidence just to replace
the findings of the lower courts."
8. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864,
the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section
100 CPC, the High Court cannot
interfere with the findings of fact
arrived at by the first Appellate Court
which is the final Court of facts except
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in such cases where such findings were
erroneous being contrary to the
mandatory provisions of law, or its
settled position on the basis of the
pronouncement made by the Apex Court
or based upon inadmissible evidence or
without evidence."
9. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the
parties in the right perspective and as stated above no substantial
question of law arises in the present appeal. The appellants have
failed to prove their case before the learned trial Court as well as
before the first appellate Court. This Court does not find any
substance in the present Second Appeal as the same is devoid of
any merit both on facts and law and the same is dismissed at
admission stage.
10. In view of the dismissal of the main Second Appeal, the Civil
Application does not survive and the same is accordingly
disposed of.
(SANJEEV J.THAKER,J)
URIL RANA
