Gujarat High Court

Hinaben D/O Thakarsibhai W/O ... vs Lhs Of Decd. Bhikhabhai Merambhai on 21 April, 2025

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                             C/SCA/15824/2024                                   ORDER DATED: 21/04/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 15824 of 2024

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                         HINABEN D/O THAKARSIBHAI W/O RAMESHBHAI BHOJAVIYA & ORS.
                                                   Versus
                                 LHS OF DECD. BHIKHABHAI MERAMBHAI & ORS.
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                       Appearance:
                       MS SANGEETA PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357)
                       for the Petitioner(s) No. 1,2,3,4
                       DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
                       for the Respondent(s) No. 2,3
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 21/04/2025

                                                             ORAL ORDER

1. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs:

"(A) YOUR LORDSHIPS may be pleased to issue appropriate writ. order and direction, quashing and setting aside the impugned order dated 30.9.2024 (Annexure-A) passed by Ld. 3rd Additional Senior Civil Judge, Junagadh on application below Exh.91 in Execution Application No.1 of 2009, in the interest of justice;

(B) YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of impugned order dated 30.9.2024 passed by Ld. 3rd Additional Senior Civil Judge, Junagadh on application below Exh.91 in Execution Application No.1 of 2009, pending the admission, hearing and final disposal of this petition;

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(C) YOUR LORDSHIPS be pleased to pass such other and further orders as may be deemed fit by this Hon'ble Court in the interest of justice."

2. The short facts of the case appears to be that the petitioners

herein are objectors to the execution proceeding filed by the

decree holders. The petitioners herein appear to have filed

impugned application below Exh.91 in the execution

proceedings thereby, requested the executing Court to stay the

implementation of decree which is sought to be executed by

the decree holders and ordered by executing court vide its

order passed below Ex.19. After hearing the parties, the trial

Court vide its order dated 30.09.2024 has rejected impugned

application. The petitioners being aggrieved by such order,

preferred the present writ application.

3. Heard learned advocate Ms. Sangeeta Pahwa for the

petitioners.

3.1 Learned advocate Ms. Pahwa would submit that the

preliminary decree and final decree which were passed by the

trial Court are beyond the prayers made in the suit thereby it

is void and could not have been implemented. As such

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petitioners were not joined in suit proceeding though their

interest would arise in the suit properties which are ancestral

properties. So, right of petitioners ought to have been

protected by executing court.

3.2 Learned advocate Ms. Pahwa would submit that petitioners

are in physical possession of the suit property and in that view

of the matter, the executing Court requires to have granted

stay on execution as prayed for.

3.3 Learned advocate Ms. Pahwa would further submit that

subsequent to the passing of the impugned order, petitioners

have in fact filed independent civil suit seeking declaration and

as well partition thereby challenged preliminary/final decree

sought to be executed in execution. So, as per Order 21 Rule

29 of CPC, executing court requires to stay the execution. In

fact, petitioners are in process of preferring First Appeal

challenging the decree sought to be executed by the

respondents then, this Court may pass an order of status quo.

3.4 Learned advocate Ms. Pahwa would submit that as such the

executing Court has committed an error in not properly

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appreciating the provision of Order 21 Rule 29 of the CPC

thereby it has committed jurisdictional error in not granting

stay in favour of petitioners.

3.5 Lastly, she would submit that if the stay prayed for is not

granted, the respondents will sell out the suit properties

thereby, it would cause great injustice to the petitioners,

whose right is severely affected due to passing of the decree.

3.6 Making above submissions, learned advocate Ms. Pahwa

would request this Court to allow the present writ application.

No other and further submissions are made.

4. At the outset, I would like to remind myself and required to

take note of the ratio of following decisions of the Honourable

Supreme Court in a case of Sameer Suresh Gupta TRPA Holder

vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374

wherein the law has been summarized thereby the scope of the

power of the High Court while exercising its power under

Article 227 of the Constitution of India has been elaborated.

The relevant observation of the aforesaid judgment reads as

under:-

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"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:

(1) Amendment by Act No. 46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or

(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the

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subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth

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flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.

7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49)

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"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

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(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

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(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality." (emphasis supplied)

4.1 It is also apt to reply upon the decision of Garment Craft

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v. Prakash Chand Goel, reported in (2022) 4 SCC 181,

wherein the Hon'ble Supreme Court of India has held as

under:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6)

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the

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Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."

(emphasis supplied)

5. Now, adverting to the facts of the present case, it appears

that preliminary decree came to be passed by the trial Court

on 18.12.1999 and subsequently final decree is passed on

20.04.2007 by the trial Court. It is undisputed fact that

petitioners have not questioned the aforesaid decrees before the

appellate Court till impugned order has been passed by the

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executing Court. True, it is that they were not parties to

decree in question. Apart from said fact, as per decree, all first

degree legal heirs of late koli punjabhi received their

respective 1/5 share in suit properties which are agricultural

lands. So, prim facies, executing court is correctly observed in

the impugned order that whatever right accrued in favour of

petitioners to ask for her share would have to be received

from legal heirs of their father namely late Thakersinhbhai

who happens to be one of son of late Koli Punjabhai having

joined in the suit. But in no case, they can stalled execution

and affect right of decree holder i.e. another branch of legal

heirs of late Koli Punjabhai.

5.1 So far submissions made by learned advocate Ms. Pahwa

that court should have stayed execution by placing reliance

upon Order 21 Rul2 29 of CPC is concern, same is not at all

impressive rather misconceived at law. It would be

appropriate to refer Order 21 Rule 29 of the CPC which reads

as under:

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"Order 21 Rule 29 Stay of execution pending suit between decree-holder and judgment-debtor:-

Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided :

[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.]

5.2 The plain reading of aforesaid provisions would suggest

that executing Court can stay the decree if any suit is pending

against the decree holder filed by judgement debtor. The

executing Court in impugned order has categorically recorded

that subsequent to filing of impugned application after 7 days,

petitioner appears to have filed suit. Further, petitioners were

not a judgement debtor in the suit as its suit for partition

wherein decree was passed giving respective share to legal

heirs of late Koli Punjabhai.

5.3 So, in view of the aforesaid facts and provisions of law,

when merely suit which is filed subsequently filed after the

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impugned application is filed and after passing of the

impugned order, petitioners herein are in process of filing an

appeal, no relief can be granted in favour of the petitioners by

placing reliance upon the aforesaid provisions which is in fact

not applicable to them.

6. Furthermore, executing Court in para-7 of the impugned

order has categorically recorded that the decree is already

implemented by the Mamlatdar and report dated 13.09.2024 is

submitted below Exh.93 by Mamlatdar which is annexed with

this writ application (Annexure-M).

6.1 Prima facie, after going through the report of the

Mamlatdar, it appears that the decree is already implemented

and possession is also handed over to the respective parties

and accordingly mutation entry has been mutated in the

revenue records. The suit land is agricultural land and once

preliminary decree has been passed, execution of such decree

and its implementation is to be undertaken by the revenue

authority as provided under the provisions of CPC as per S. 54

read with Order 20 Rule 18 of CPC.

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6.2 The Co-ordinate bench of this Court has also taken view in

case of Dinbandhu Dinanath Prajapati Versus Devenbhai

Mafatlal Patel reported in 2024 (4) GLR 3074 having so held

that the Court having become functus officio cannot entertain

any further application against the preliminary decree and set

the clock back prior to the preliminary decree. The relevant

paragraphs are as under:

"20. Another issue arises is that can a civil court entertain any such application after sending the preliminary decree for partition of the agricultural land assessed for Land Revenue under Section 54 read with O.20 R.18 of the CPC to the Collector. Section 54 of the CPC reads thus:

54. Partition of estate or separation of share .-

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

21. Section 54 is parimateria or a reproduction of section 265 of the Code of Civil Procedure, 1882 with a verbal alterations. Where a decree has been passed for partition

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or for of a share of an estate of the description mentioned in this section, the proper authority to effect partition or to deliver the possession of the share is the Collector. The Court passing preliminary decree in a subject matter which is assessed for payment of land revenue become functus officio. Section 54 does not talk about a final decree. All that is required of a civil court in a case for partition or to deliver possession case for partition of an undivided estate assessed to payment of land revenue of government or for the separate possession of a share in such an estate is to pass a preliminary decree and to declare a right of the party and to give direction for such partition or separation to be made by the collector. Thereafter, the execution is to be effected by the Collector. The civil court, after passing such decree for partition, becomes functus officio and has no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in passing such accordance with preliminary decree but the partition intended to be left to the Collector has some impact upon the revenue and the revenue records.

22. The court after drawing the preliminary decree becomes functus officio in relation to the decree for partition passed by it and all further proceedings for execution of such decree have to be carried out by the concerned revenue officer. The court is prevented from acting as an executing court for the purpose of execution of decree for partition. Not only, once the preliminary decree is drawn, the rights of the parties are settled, it cannot be unsettled by the same court, allowing the recall application on record. Once becomes functus officio at the most, the civil court can direct the Collector to execute the decree and to make partition if the revenue officer are

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not proceeding further. The civil court can also act if the petitioner do not want to reopen the decree; but they are expecting the decree as it is and they only want to equity to be settled in their favour.

25. What appears in the present case is that respondent who is non-party to the suit or not a party to the suit, preferred the recall application to the civil court which has passed the preliminary decree with a prayer to recall the preliminary decree. As stated herein above, the civil court after passing the preliminary decree in RCS No.210 of 2012 and sent it for partition to the Collector in view of Section 54 read with O.20 R.18 of the CPC becomes functus officio, to entertain the application. The trial court has committed serious error not only in entertaining the recall application; but passing status quo order staying its own preliminary decree from the execution which is serious jurisdictional error committed by the court below. The court having become functus officio cannot entertain any further application against the preliminary decree and set the clock back prior to the preliminary decree. Hence, the petition deserves merits."

7. Keeping all these facts into account as well as ratio of

aforesaid decisions of Honourable Apex Court and this Court

and so also after going through the impugned order of the

executing Court, I do not find any reason to interfere with the

impugned order having not found any material irregularity,

illegality, gross error of law and / or a jurisdictional error

committed by the execution Court while passing it.

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8. I would only observe that it would be open for the

petitioners to exhaust other remedies which are available to