[Cites 10, Cited by 0]
Gujarat High Court
Lalji Karsan Vaghela vs Ghanshyam Raghuvir Temple on 5 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 247 of 2022
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LALJI KARSAN VAGHELA
Versus
GHANSHYAM RAGHUVIR TEMPLE
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Appearance:
MR SUKUMAR M TIRTHANI(12200) for the Applicant(s) No. 1
MR.MAHESH A TAKHTANI(7174) for the Applicant(s) No. 1
MR PRATIK Y JASANI(5325) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/12/2025
ORAL ORDER
1. Heard learned advocate Mr. Sukumar M. Tirthani
appearing for the applicant - revisionist and learned advocate
Mr. Pratik Y. Jasani appearing for the opponent No.1.
1.1 This revision challenges the order dated 30.03.2022 passed
by the learned 2nd Additional Senior Civil Judge, Jamnagar in
Regular Execution Petition No. 60 of 2004, whereby possession
warrant under Order XXI Rule 35 of the Code of Civil Procedure,
1908 (hereinafter referred to as 'the Code') came to be issued.
2. It was argued by learned advocate Mr. Sukumar M.
Tirthani that the case of the present applicant is different than
the case decided by this Court in Civil Revision Application No.
328 of 2024 with Civil Revision Application No. 329 of 2024.
2.1 He would submit that there is no registered sale deed
executed in favor of the judgment holder, which permits him to
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step into the shoes of the decree holder and until such formality
is concluded, the plaintiff of the execution petition cannot come
to seek the execution of the judgement and decree passed in
Regular Civil Suit No. 282 of 1962.
2.2 He would submit that, this issue has not been discussed
by the learned executing Court in an impugned judgement, and
therefore, the order passed by learned executing Court is
erroneous and against the factual aspects on the record. He
referred to the consent terms recorded and the decree thereof, in
the suit and submitted that these consent terms should not
permit the judgment holder to execute the decree, which was
passed in Regular Civil Suit No. 282 of 1962 and confirmed in
Regular Civil Appeal No.157 of 1962.
2.3 In line of the aforesaid submissions, he would submit that
the order impugned in this matter be quashed and set aside and
further issuance of the warrant under Order XXI Rule 35 of 'the
Code' be set aside.
3. As against the aforesaid judgment, learned advocate Mr.
Pratik Y. Jasani appearing for the opponent - original judgment
holder, referred to the judgement of this Court in Civil Revision
Application No. 328 of 2024 with Civil Revision Application No.
329 of 2024 and submitted that all the contentions raised by
present applicant, who is the objector in execution, has been
dealt by this Court. Therefore, the judgment governs the decision
of this Civil Revision Application. Hence, he submitted to dismiss
this application.
4. In reply, learned advocate Mr. Sukumar M. Tirthani for the
applicant submitted that, Mr. Lalji Karsan Vaghela, the
revisionist herein, is an old aged person and living in the
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property, being the subject matter of the execution, since more
than 63 years, and therefore, either he should be given time or
should not be evicted at the threshold, more particularly when
plaintiff of the execution did not get any right to execute decree.
5. Having heard learned advocates for both the sides and
considering the factual milieu of the case, it is apt to note that,
the identical issue arose before this Court in Civil Revision
Application No. 328 of 2024 with Civil Revision Application No.
329 of 2024, whereby some other person, in capacity of the
objector of execution, filed the Civil Revision Application
challenging the possession warrant issued under Order XXI Rule
35 of "the Code", sought for executing the judgement and decree
passed in Regular Civil Suit No. 282 of 1962, i.e. the very same
suit for which the execution was sought for against the present
applicant.
6. This Court, in para 4 to 15, addressed the submission
canvassed by learned advocates for both the sides and the
decided the revision in favour of the decree holder. Para 4 to 15
reads thus:-
"4. Various contentions are raised by learned advocate
Mr.Vaibhav Goswamy against issuance of warrant under
Order 21 Rule 35 of CPC. Firstly, it is contended that at
earlier point of time, Execution Petition No.185 of 1971 was
filed before the Court below and in that matter on
12.01.1978 adjustment was drawn by the Court which
indicates decree was satisfied on that day as symbolic
possession of disputed properties, whose possession are
ordered to be handed over as taken by way of symbolic
possession from railways and therefore, second execution
i.e. present execution petition is not maintainable, principle
of res-judicata applies. Second submission canvassed by
learned advocate for the petitioners is that Execution Court
has wrongly placed reliance on section 10 of Limitation Act
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to evade operation of Article 135 of the Limitation Act. It is
also submitted that decree can be executed within 12 years
from the date it is confirmed i.e. from 01.02.1971. In the
present case, after many years, decree is sought to be
executed. It is submitted that railways who is judgment
holder is not joined as party in the execution proceedings
and therefore, in absence of judgment holder, execution
cannot be directly executed against person who is in
possession of disputed property. Lastly, it is submitted that
even if the petitioners are in illegal possession of disputed
property, judgment holder is required to file separate suit
seeking possession of disputed property. He cannot take
possession by way of shortcut by executing decree by taking
resort of Order 21 Rule 35 of CPC. Therefore, it is submitted
that Executing Court has committed serious error and
impugned order is arbitrary and against settled principle of
law.
4.1. It is also submitted that in one of the execution, order
was passed by Executing Court, decision was challenged by
way of Civil Revision Application No.247 of 2022, whereby,
Co-ordinate Bench of this Court has passed order and
stayed order passed below Exh.1.
4.2. Learned advocate for the petitioner in support of his
submission relied on judgment of Madras High Court in the
case of Palaniandi Gramani Manichammal v/s. V.
Murugappa Gramani [AIR 1935 Mad 483], which is
quoted with approval in the case of M.Siddiq (D) v/s.
Mahant Suresh Das [2020 (1) SCC 1]. He has also relied
on judgment in the case of Antonysami v/s. Arulanandam
Pillai (Dead) by Lrs. [(2001) 9 SCC 658] and another
judgment in the case of Ratan Lal Jani v/s. Uma
Shankar Vyas [(2002) 2 SCC 656].
4.3. On above submissions, it is submitted to admit present
Revision Applications and to stay implementation and
execution of the order passed below Exh.1 in Execution
proceedings.
5. On the other hand, learned advocate Mr.Pratik Jasani for
the decreed holder taking this Court through impugned order
would submit that some adjustment was arrived in earlier
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dartkast proceedings, whereby, the petitioners either
themselves or their father have accepted that they are
bound by decree and shall evict the premises either on being
retirement or being transferred from Jamnagar. It is further
submitted that decree holder was Western Railway but
when adjustment took place in Darkhast, the petitioners
have accepted that they are bound by decree and in view of
that decree is executable against them directly without being
agitating their rights whatsoever. He would submitted that
decree is continuous as could be seen from adjustment and
execution petition is filed in the year 2004, once decree
holder came to know that inspite of being retired from
railways, the petitioners have not evicted premises.
Therefore, he submits that present Revision Applications are
bereft of merits and requires to be dismissed with costs.
6. Having heard learned advocates for the parties, at that
outset, what could be notice that judgment holder has filed
Regular Civil Suit No.282 of 1962 against Western Railways
claiming possession of 8 acres 24 and 3 guntas of (karaba)
land belongs to and owned by Ghanshaymdas Mohandas,
in which Western Railways has allotted quarters to their
employees. First Appeal was preferred, which was
dismissed. Second Appeal was moved before this Court and
same was also dismissed and as such decree became
absolute and executable. No sooner decree was sought to be
executed by filing Darkshat No.185 of 1971 in execution
proceedings, some adjustment was drawn and it was
recorded by learned Trial Court on 12.01.1978. Adjustment
reads as under :-
'1. The main mechanical shops where production and
repairs are being carried out and thier ancillaries
including siding, pipelines, power lines etc., and the
boundary walls be allowed to be continued in possession
of the defendant in present premises for a period of five
years commencing from 01.04.1977 to 31.08.1982 or till
the date the possession of the land under workshop is
handed over whichever is earlier in consideration of
western railway agreeing to pay Rs.9000 per year in
advance every year commencing from 01.04.1977 by
way of mense profits.
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2. The decree holder will be at liberty to obtain
possession of land under workshops on 01.04.1982 or
thereafter by execution of the decree passed in his
favour. If the delivery for possession is delayed for any
reason whatsoever the decree holder will be entitled to
Rs.750/- per month from 01.04.1982 onwards by way of
mense profits till the possession is restored to him.
3. The said sum of Rs.9000/- is paid in advance to the
decree holder (plaintiff) by cheque no.00502106 dated
09.03.1977 for the year commencing from 01.04.1977,
which the plaintiff acknowledge to have received.
4. It is therefore, prayed that the terms of this
compromise may kindly be recorded as an adjustment of
the decree and adjustment in the above terms may
kindly be made under the original decree dated
26.07.1963 in Civil Suit No.282 of 1962 of this Hon'ble
Court.'
7. Adjustment was arrived on application filed by various
quarter holders, where one of the signatory is Jaisingh
Ahluwalia who is petitioner in Civil Revision Application
No.328 of 2024 and another father of the petitioners of Civil
Revision Application No.329 of 2024 - Kasam Coalboy is
also signatory to the application moved before the Executing
Court seeking adjustment. At this stage, before averring to
terms and conditions upon which adjustment was recorded
by the learned Civil Court, it is necessary to refer judgment
relied by learned advocate for the petitioner in the case of
Antonysami (supra). Para 15 and 16 of the said judgment
reads as under :-
"15. The learned counsel for the appellant placed strong
reliance on a Full Bench decision of the Allahabad High
Court in the case of Abdul Rashid v. Sri Sitaramaji
Maharaj Brajman . In para 8 of the judgment the High
Court observed that the basic test is whether there is a
right available to the decree-holder to apply for execution
immediately or the fulfillment of some condition is a
condition precedent and further, whether the terms of the
decree cast any obligation on the decree-holder to comply
with that condition within a specified period; where no
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such period is specified the execution of the decree must
be deemed to remain in abeyance and the limitation
would commence only from the date when the plaintiff
chooses to comply with the condition. The High Court
drew support from the language of Article 136 of the
Limitation Act as giving a legislative approval to the view
that the Limitation remains in abeyance so long as the
contingent condition is not performed. Interpreting the
decree in that case the High Court observed
"In the instant case there was a clear obstacle to the
immediate execution of the decree. Under the terms of
the compromise decree it was obligatory for the decree-
holder to serve two months notice on the judgment-
debtor calling upon him to remove the constructions
and delivering possession that the decree- holder was
entitled to execute the decree for possession;
immediate execution of the decree was therefore
negatived by the terms of the compromise decree."
16. This decision in our view is clearly distinguishable on
facts. Even accepting the principles referred to therein it
cannot be said that in the present case the decree
passed was a conditional or contingent one.
7.1. In the said judgment, Hon'ble Apex Court accepted the
principle of Full Bench of Allahabad High Court. However, in
the facts and circumstances distinguished the same.
Principle referred therein that decree passed conditional or
contingent one, limitation would depend on facts of the case
on hand. Hon'ble Apex Court distinguished judgment of Full
Bench of Allahabad High Court.
8. At this stage, I may also refer to Article 136 of Limitation
Act which reads as under :-
Description of Period of Time from which period
application limitation begins to run.
For the execution Twelve years. [When] the decree or
of any decree order becomes
(other than a enforceable or where the
decree granting a decree or any
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mandatory subsequent order directs
injunction) or order any payment of money
of any civil court. or the delivery of any
property to be made at a
certain date or at
recurring periods, when
default in making the
payment or delivery in
respect of which
execution is sought,
takes place :
Provided that an
application for the
enforcement or execution
of a decree granting a
perpetual injunction
shall not be subject to
any period of limitation.
9. Time period to execute decree will began to run when
decree becomes enforceable or where the decree or any
subsequent order directs any payment of money or the
delivery of any property to be made at a certain date or at
recurring periods when default in making the payment or
delivery in respect of which execution is sought, takes place.
10. In background of above aspects, if we see adjustment
arrived between the parties, para 2 thereof states that
boundary walls be continued in possession of the defendant
in the present premises for a period of five years
commencing from 01.04.1977 to 31.03.1982 or till the date
of possession of land is handed over which ever is earlier in
consideration of western railway agreeing to pay Rs.9000/-
per year in advance every year commencing from
01.04.1977 by way of mense profit. It is important and it is
continuous decree. It could further be notice that by order
dated 12.01.1978, learned Civil Court has not disposed of
execution finally but recorded adjustment. Such adjustment
relates back to original decree meaning thereby execution of
the decree was kept for execution though formal order of
execution is passed. Adjustment recorded by the learned
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Civil Court and not questioned by any party, some
conditions and contingency were added to the original
decree. Decree can be executed till date possession is not
handed over as by way of adjustment some contingency
was made in the execution of decree. This decree becomes
executable having recurring cause of action and it cannot be
said to be barred by Article 136 of Limitation Act. What
further appears that present petitioners themselves have
stated that they will vacate disputed property and they are
bound by decree. In this circumstances, according to this
Court, learned Trial Court has rightly issued warrant under
Order 21 Rule 35 of CPC.
11. Issue of pendency of execution / conditional decree vis-
a-vis limitation under Article 136 of the Limitation Act came
up before this Court in the case of Ranchhodbhai
Jorabhai v/s. Bai Rai d/o Patel Karsanbhai Gulab &
w/o Ramdas Karsan [1979 (2) GLR 575]. It was decree
where suit for specific performance was decreed in favour of
the plaintiff with certain conditions to obtain necessary
orders from some revenue authorities under the Bombay
Prevention of Fragmentation Consolidation of Holding Act,
1947. After referring various judgments of other High Courts
on the test whether disposing execution petition without
determining execution of decree can held to have decision
that execution is decided. Relevant para 14,15,16,17, 18
and 19 of the said Judgment reads as under :-
'14. In order to support the aforesaid submission he
invited my attention to the various judgments. In
Sankara Kurukkal Narayana Kurukkal V/s. Edikali
Pervathi and others AIR 1953 Tra. Co. 359 a Division
Bench of the Travancore High Court considered the
question as to when the earlier execution proceedings
can be deemed to be pending. In the case before the
Travancore High Court the earlier execution proceedings
were dismissed without notice to the decree holder and
only for statistical purpose. It was therefore held that the
posting of the case was made without notice to the
decree-holders and that therefore the dismissal of the
execution application was not a judicial disposal The
execution application must be deemed to be still pending
and the application should be taken to be one in
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continuation of that application. In a latter judgement of
the Travancore High Court in Boothathan Nadar Appaya
Nadar V/s. Savarinuthu Nadar Deniel Badar AIR 1955
Travancore 109 a question arose as to whether the
earlier execution proceedings could be deemed to be
pending and the subsequent proceedings were in
continuation thereof. The facts before the Travancore
High Court in this judgement were that is an execution
petition praying for the arrest of the judgement debtor for
sale of the property charged under the decree and for
attachment and sale of judgment-debtors properties the
judgment-debtor was actually arrested but the amin
surrendered the warrant on the ground that the decree
holder had given the judgment-debtor five days to pay
the amount and after three days the Court passed an
order struck off with costs. Under the aforesaid
circumstances it was held that the expression struck off
was not a correct one if thereby the execution petition
was intended to be dismissed and as there was a
prayer for sale of the property charged under the decree
which was not dealt with by the Court at all the proper
procedure would have been to post the case for further
steps relating to the prayers not yet carried out and so
far as that prayer was not dealt with by the Court it
could not be held that the disposal was judicial. The
execution petition had to be deemed pending so that the
next execution petition filed beyond a period of six years
from the date of dismissal had only to be treated as one
to remind the Court to take the further steps prayed for
already and consequently the execution was not barred
by limitation.
15. The same High Court had also an occasion to
consider a similar question once again in Hajee
Mohommed Metharu V/s. Joseph Achamma A.I R. 1957
Travancore-Cochin 92. The question before the Division
Bench in that case was as to whether the order passed
by exactly using the words dismissed rejected and
struck off without judicial disposal of the execution
petition has to be deemed as keeping the proceedings
pending even after the order and capable of being
revived or continued by the decree-holder at a later stage
and whether it meant merely to adjourn the execution
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petition sine die. While answering the said questions in
favour of the decree holder it was observed by the
Division Bench of the Travancore High Court in the above
case that the effect of orders such as dismissed rejected
and struck off passed for the purpose of statistics and
not by reason of the decree-holders default or of the
judicial disposal of the execution petition is merely to
adjourn the execution petition so dismissed rejected or
struck off which has to be deemed as pending even after
the order and capable of being revived or continued by
the decree holder at a later stage. Whether the order is
one having only the effect of adjourning the execution
proceedings sine die or whether it is one judicially
disposing of the execution petition has to be ascertained
from the facts and circumstances of each case. The facts
in this case were that in execution of a decree a sale was
affected in favour of the decree holder with the
permission of the Court but the said auction sale was set
aside and the case was posted to 19-1-1115 for the
decree holder to take further steps on 19-1-1115 the
decree holder filed a petition stating that he was filing an
appeal against the order setting aside the sale and
praying that the execution petition might therefore be
struck off keeping the attachment alive and permitting
him to take further steps after the decision of the appeal.
Thereupon the Court passed an order on the same day
on the execution petition reading dismissed attachment
retained. The said order of the executing court was
interpreted by the Division Bench of the Travancore High
Court in the aforesaid decision to mean to adjourn the
execution proceedings sine die so that the decree holder
might prosecute the appeal and obviate the necessity to
continue the execution proceedings and need continue
the proceedings only in case the appeal went against
him. It was not on account of the decree-holders default
that the Court dismissed the petition. It did so only for
purposes of statistics because the execution petition had
to be adjourned sine die on account of the appeal against
the order setting aside the previous auction sale.
Attachment therefore cannot be deemed to have ceased
with the order and must be held to be still subsisting.
16. A similar question also arose before the Lahore High
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Court in Vishan Das V/s. L. Chandi Ram AIR (34) 1947
Lahore 36. A learned single Judge of the said Court took
the view that the words consigned to record room in the
order did not bring the application to an end The facts
before the Lahore high Court in the above case were that
on receipt of order under sec. 25 of Punjab Relief of
Indebtedness Act 1 (execution court stayed the execution
of the decree. The parties could not come to an
agreement before the Board and a certificate was
eventually granted by the Board as a result of which the
decree holder could not have applied for execution for
about nine years. On receipt of this certificate the
executing Court passed an order consigning the
execution to record room as being unsatisfied. The
question was whether the aforesaid order amounted to
an effective disposal of the execution proceedings so as
to bar a fresh application for execution filed beyond a
period of three years from the date of the earlier disposal
of the darkhast. It was held by Abdur Rahman J. in the
aforesaid decision that the words consigned to record
room in the order did not bring the application to an end
and the order Passed by the Court in absence of any
provision of law either in the Code of Civil Procedure or in
the Punjab Relief of Indebtedness Act under which the
Court would have dismissed the decree holders
application could only be construed as an order of
suspension or of stay and not of dismissal and the
subsequent application for execution must therefore be
treated as an application for continuation of the
proceedings held on the previous application and not a
fresh application for execution. For arriving at the
aforesaid conclusion the learned single Judge relied
upon AIR 1943 Lah. 176 (F.B.).
17. The Madras High Court in Muthuveeranna Chettiar
V/s. Muthuvenkararama Chettiar and others AIR (38)
1951 Madras 711 had also an occasion to consider this
question. A learned Judge of the said High Court
Panchapakesa Ayyar J. held that if an execution petition
is struck off lodged recorded or closed while yet the
reliefs prayed for or some of them remain undisposed of
without being covered by final orders either granting or
refusing those reliefs then the petition will continue to be
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on the file of the court despite its being struck off lodged
recorded or closed. In that case the learned Judge of the
Madras High Court held that in a decree for maintenance
charged on immovable property a receiver should
generally be appointed in suitable cases to realise the
dues of the decree holder. But the execution proceedings
could be terminated validly by the Court (as apart from
the consent of parties) only by waiting till the Receiver
had collected enough to pay the amount claimed and
made the reports required (like the desirability of filing
suits) as a receiver is an officer of the Court. The mere
appointment of the decree-holder as a receiver by itself
would not dispose of the relief asked for. It was further
held by the learned Judge that it is the clear duty of a
Court to dispose of an execution proceeding really
effectively and validly in one of the ways known to law.
It should not close it for statistical purposes in its anxiety
for quick disposal. The law is there to give redress and
relief and not for nominal and quick disposal giving no
relief or redress. It was therefore held that the execution
proceeding was improperly closed for statistical or other
purposes and in effect continued undisposed.
18. A Division Bench of Assam High Court in Ram Dahin
Bahani Prasad Bania and Kam Dain Bahali Prasad
Bania Firm V/s. Raghunandan Nunia and another All
India Reporter 1952 Assam 172 has laid down the test
for determination whether an execution proceeding can
be laid to have been effectively terminated. In the case
before the High Court of Assam the facts were that at an
earlier stage the execution was terminated by the
executing Court by holding that the case was very old
and that the judgement debtor had filed an application
for the stay of execution till the period of appeal before
the High Court and that there was a stay of execution till
the period of appeal. As the case was very old it was
dismissed. While holding that this dismissal was for
statistical purposes the Division Bench of Assam High
Court held that no hard and fast rule may be laid down
for determining whether an order is final or otherwise
and the question whether an execution is pending or has
been terminated by a final order should depend upon an
interpretation of the order and the inference to be drawn
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as to the Courts intention. The intention of the Judge in
that case was to slay the proceeding to enable the
judgment debtor to appeal. Suspension of the execution
was the main purpose. The fact that the execution was
old influenced the use of the word dismissed with an eye
to possible statistical advantage. The dismissal of the
execution application and the use of the word dismissed
were not justified in law. Where an application is stayed
or intended to be stayed without any final determination
in the proceeding then notwithstanding that it is struck
officer dismissed it ought to be treated as pending and in
suspense and therefore capable of revival It was further
held that the previous execution case must be treated as
pending and in a-state of suspended animation it not
having been finally disposed of by a judicial order. While
arriving at the aforesaid conclusion the Division Bench
placed reliance on the judgments of the various High
Courts.
19. A single Judge of the Madhya Pradesh High Court in
Umrao Khan Akbar Khan V/s. Waheed Khan Abdul
Majeed AIR 1960 Madhya Pradesh 388 had also an
occasion to consider a similar question. In the above case
before the Madhya Pradesh High Court the appellate
Court had granted stay of the execution proceedings
after the sale had taken place in these proceedings. In
the meantime the executing court dismissed the appeal.
An appeal was preferred by the judgment-debtor to the
High Court of Madhya Pradesh but it was dismissed
Thereafter another application for execution was filed.
The question before the Madhya Praesh High Court was
whether this second application was within time. The
learned single Judge held that subsequent execution
praying for confirmation of sale and proceeding further
with the previous execution being one for revival and
continuation cannot be barred by any length of time. It
was also observed that the previous execution
proceedings were dismissed for default only for
administrative reason and in the eye of law the
proceedings were suspended in view of the stay order of
the appellate Court. Hence the execution must be
deemed to have pending. It was further held that in
reality where an execution is suspended for no default of
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the decree-holder, it remains pending and can be evived
on an application by the decree-holder without being
handled by any rule of limitation It is not barred either
under Art. 182(5) nor Art.181. But the Court has to see
cautiously whether the same relief is claimed and it is
the continuity of the suspended execution from the stage
of its suspension which is prayed or that a new relief or
new mode of execution is sought. In the latter case it will
be a fresh application even though it may be styled as
an application for revival. On the contrary if the
application is merely to call the attention of the Court
that it has to continue the proceedings which had been
suspended it is immaterial that it is drawn on a printed
form as if it were a fresh application for execution. It is
the substance of the application on which depends the
legal effect.'
12. After referring above legal position, Co-ordinate Bench
of this Court held that if execution is not determined as per
decree passed by the Court and withdrawal simplicitor is
there, it amounts to pendency of execution. This aspect can
be noticed against defendant. In the present case, execution
was never decided as per decree. What is decided in the
year 1978 was adjustment which relates back to original
decree and become part of decree. The petitioners and their
four-fathers were required to hand over possession on
certain conditions and contingency. They failed to do so and
as such, it compelled judgment holder to file Darkshat which
is nothing but revival of original earlier Darskast No.185 of
1971. Thus, question of limitation does not arise in the
present case.
12. One more submission of learned advocate for the
petitioners that railways is not joined as party defendant.
But adjustment took place in the year 1978 and recorded in
the execution proceedings, the petitioners are bound by
decree passed in Regular Civil Suit. Adjustment relate back
to the original decree and therefore, the petitioners have
become judgment debtors. In this circumstances, presence of
railways is not necessary more particularly when railways
has issued notice for vacating premises.
13. In the present case, as observed herein-above, the
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petitioners are not disputing that they have not signed
adjustment and agreed to hand over disputed property on
certain conditions and contingency. Filing of petition before
learned Trial Court and this Court lacks bona-fide. Even
otherwise, discretionary orders are not meant for the
persons who are dishonest.
14. This is classic example, how wrong doer can take
shelter of possession and continued illegal possession for
years together. Decree of possession has been passed by
the competent Court somewhere in the year 1962 and
confirmed in Second Appeal in the year 1971 and yet
petitioners who are bound by decree are litigating cause for
possession which they have agreed by way of adjustment
which took place in the year 1978. What further appears
that the present petitioners who are railway employees
retired in the year 1988 and still continued possession of
railway quarter despite notice being issued by railways.
13. The judgments relied by learned advocate for the
petitioner does not help to the petitioners.
14. This kind of frivolous litigation has chocked judicial
system which is already overburden and therefore, while
declining present Revision Applications, this Court is
required to quantify realistic cost. The Hon'ble Apex Court in
the case of Dnyandeo Sabaji Naik Versus Pradnya
Prakash Khadekar [2017 (5) SCC 496], in para 13 and
14 has held as under :-
'13. This Court must view with disfavour any attempt by
a itigant to abuse the process. The sanctity of the judicial
process will be seriously eroded if such attempts are not
dealt with firmly. A litigant who takes liberties with the
truth or with the procedures of the Court should be left in
no doubt about the consequences to follow. Others
should not venture along the same path in the hope or on
a misplaced expectation of judicial leniency. Exemplary
costs are inevitable, and even necessary, in order to
ensure that in litigation, as in the law which is practised
in our country, there is no premium on the truth.
14. Courts across the legal system - this Court not being
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an exception - are choked with litigation. Frivolous and
groundless filings constitute a serious menace to the
administration of justice. They consume time and clog
the infrastructure. Productive resources which should be
deployed in the handling of genuine causes are
dissipated in attending to cases filed only to benefit from
delay, by prolonging dead issues and pursuing
worthless causes. No litigant can have a vested interest
in delay. Unfortunately, as the present case exemplifies,
the process of dispensing justice is misused by the
unscrupulous to the detriment of the legitimate. The
present case is an illustration of how a simple issue has
occupied the time of the courts and of how successive
applications have been filed to prolong the inevitable.
The person in whose favour the balance of justice lies
has in the process been left in the lurch by repeated
attempts to revive a stale issue. This tendency can be
curbed only if courts across the system adopt an
institutional approach which penalizes such behavior.
Liberal access to justice does not mean access to chaos
and indiscipline. A strong message must be conveyed
that courts of justice will not be allowed to be disrupted
by litigative strategies designed to profit from the delays
of the law. Unless remedial action is taken by all courts
here and now our society will breed a legal culture
based on evasion instead of abidance. It is the duty of
every court to firmly deal with such situations. The
imposition of exemplary costs is a necessary instrument
which has to be deployed to weed out, as well as to
prevent the filing of frivolous cases. It is only then that
the courts can set apart time to resolve genuine causes
and answer the concerns of those who are in need of
justice. Imposition of real time costs is also necessary to
ensure that access to courts is available to citizens with
genuine grievances. Otherwise, the doors would be shut
to legitimate causes simply by the weight of undeserving
cases which flood the system. Such a situation cannot be
allowed to come to pass. Hence it is not merely a matter
of discretion but a duty and obligation cast upon all
courts to ensure that the legal system is not exploited by
those who use the forms of the law to defeat or delay
justice. We commend all courts to deal with frivolous
filings in the same manner."
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15. For the foregoing reasons, the Civil Revision
Applications are dismissed with cost of Rs.5,000/- in each
Revision Application. Cost be paid before the learned
Executing Court within one week, failing which concerned
Collector is directed to recover the same as arrears of land
revenue. If amount of cost is deposited, same shall be
transferred to District Legal Services Authority, Jamnagar."
7. The aforesaid reasons pari-passu applies to the present
revision application. No new case could be pleaded by the
present applicant. The contention raised by revisionist that since
sale deed is not executed, right to execute decree is not available,
is also discussed by this Court in aforesaid judgment and order.
8. In the aforesaid circumstances, the revision sans merit and
deserves to be dismissed, and is accordingly dismissed.
8.1 Interim-relief, granted earlier, is discontinued.
(J.C. DOSHI, J.)
Raj
9. After pronouncement of the judgment, learned advocate
Mr. Sukumar M. Tirthani urged the Court to stay the
implementation and execution of this order for 04 weeks, which
would enable the applicant to approach the higher Court.
However, for the reasons stated hereinabove, I am not inclined to
extend the interim-relief. Accordingly, the request made by
learned advocate Mr. Sukumar M. Tirthani is rejected.
(J.C. DOSHI, J.)
Raj
