Gujarat High Court
Panchal Rasiklal Chelabhai vs Shri Jain Sangh on 11 February, 2025
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C/CA/460/2025 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO. 460 of 2025
In
F/CIVIL REVISION APPLICATION NO. 35166 of 2024
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PANCHAL RASIKLAL CHELABHAI
Versus
SHRI JAIN SANGH & ORS.
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Appearance:
MR MAHESH BHAVSAR(1781) for the Applicant(s) No. 1
MRS HM BHAVSAR(5340) for the Applicant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 11/02/2025
ORAL ORDER
1. The present Civil Application has been filed
challenging the legality and validity of the order dated
28.11.2024 passed by learned Principal Civil Judge,
Satlasna in Execution Application No.51 of 2020 passed
below Exhibit-1 whereby the application to join the
applicant as party has been rejected, and therefore, the
present leave to appeal has been filed.
2. The learned advocate for the applicant has argued
that his application before the Executing Court was under
the provision of Order 21 Rule 58 of the Code of Civil
Procedure.
3. The learned advocate for the applicant has stated that
the Executing Court has not adjudicated on the dispute
while deciding the application under the provision of
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Order 21 Rule 58 of the Code of Civil Procedure, and
therefore, only remedy that the applicant has to seek to
prefer Civil Revision Application.
4. The brief facts arising in the present dispute are that
the original plaintiff had filed Regular Civil Suit No.7 of
2001 against the legal hairs of Panchal Babulal Chelaram
and in the said suit, the present applicant is not a party
and after the judgment and decree was passed in case
No.07 of 2001, present third party, in Execution Petition
had moved the application to be joined as party defendant
and said application having been rejected, the applicant
has moved the present Civil Revision Application.
5. It has been argued by learned advocate for the
applicant that the present applicant through a third party
and is a necessary party in the Execution Petition, and
therefore, the third party have been joined as party
defendant.
6. The applicant third party has already filed a Special
Suit No.2 of 2020 with respect to right in the property,
and therefore, also it has been argued till the time the
said suit is decided the Execution proceedings could not
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have been proceeded by the trial Court and without
adjudicating on the right of the third party, the application
has been rejected which is under challenge.
7. Having heard learned advocate for the applicant, it is
the applicant's case that the application that was filed
before the Executing Court in case No.51 of 2010 was
under the provision of Order 21 Rule 58. Now having look
in Order 21 Rule 58 which reads as under:-
"58. Adjudication of claims to, or objections to attachment
of property-(1) Where any claim is preferred to, or any
objection is made to the attachment of, any property
attached in execution of a decree on the ground that such
property is not liable to such attachment, the Court shall
proceed to adjudicate upon the claim or objection in
accordance with the provisions herein contained:
Provided that no such claim or objection shall be
entertained-
(a) where, before the claim is preferred or objection is
made, the property attached has already been sold; or
(b) where the Court considers tht the claim or objection
was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title
or interest in the property attached) arising between the
parties to a proceeding or their representatives under this
rule and relevant to the adjudication of the claim of
objection, shall be determined by the Court dealing with
the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in
sub-rule (2), the Court shall, in accordance with such
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determination,-
(a) allow the claim or objection and release the property
from attachment either wholly or to such extent as it thinks
fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge
of other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it
deems fit.
(4) Where any claim or objection has been adjudicated
upon under this rule, the order made thereon shall have
the smae force and be subject to the same conditions as to
appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the
Court, under the proviso to sub-rule (1), refuses to entertain
it, the party against whom such order is made may
institute a suit to establish the right which he claims to the
property in dispute; but, subject to the result of such suit,
if any, an order so refusing to entertain the claim or
objection shall be conclusive.
8. Therefore, the said provision specifically mentions
that when the objection has been adjudicated upon under
Order 21 Rule 58 of CPC, the order made thereon has the
same force and subject to the same condition as to the
appeal as having the same as a decree.
9. In this background, it is required to be seen that
whether an appeal shall lying or a Civil Revision
Application can be filed, the parliament while introducing
the bill for amending the Code by Act 104 of 1976. The
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statement and objects of clause 75 of the Bill reads as
follows:-
"Clause 75 Sub-cluase (XXV)- Rule 58 to 63 deals with
claims and objections in execution. At present the
adjudication in execution has limited scope and the
matter can be further agitated by way of a regular suit In
order to prevent protraction of litigation, it is thought
desirable to have all questions (including questions of
title) settled finally in execution proceedings itself. This
would be in keeping with the tenor of Section 47 wherein
it is provided that all questions arising between parties to
the suit relating to the execution, discharge and
satisfaction of the decree shall be determined by the
Court executing the decree and not by a separate suit.
Rules 58 to 63 are being substituted accordingly."
Further the present provision was introduced as per the
14th, 27th and 44th reports of the Law Commission in 27 th
Report, the Law Commission of India suggested in
Appendix. I the Proposal to introduce a draft amendment
to Or. 21 Rule 58 which is enacted without any
modification. Reason for the said proposal was also given
at page 198 of the above report. It was stated that under
the new scheme as proposed full enquiry into the title
will be held and suit will be barred under the changed
scheme. They also observed at page 198 tht since orders
under order 21 R 58 C.P.C. will now be appealable as
decree the appeal shall attract full court fee and for the
purpose of court fee these orders should be treated as
orders under sec. 47. Thus the intention of the Legislature
starting from its preparation of the bill and adopting the
change suggested by the Law Commission verbatim would
clearly indicate that the provision of Or. 21 R 58 C.P.C.
must be an exhaustive remedy as a suit and the orders
passed thereon must be treated as decrees without
restricting any rights of appeal We are clearly of the
opinion that in the absence of any prohibition for further
appeal embodied in Or. 21 Rule 58 C.P.C., the party to
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the proceedings under Or. 21 Rule 58 C.P.C. is clearly
entitled to the further appeal under the Code viz the
second appeal."
10. Moreover, the reading of order 21 Rule 58(4) makes
it clear that any order passed by the Court in an inquiry
into a claim the same shall have the same force and can
be subject to the same conditions as to appeal or
otherwise as if it were a decree. In view of this specific
provision the remedy of any person aggrieved by any
order passed by any Court adjudicating claims to or
objections has to prefer an appeal over the said order and
a Revision Application under Section 115 shall not be
maintainable. Section 115(2) reads as under:-
"115(2). The High Court shall not, under this section,
vary or reverse any decree or order against which an
appeal lies either to the High Court or to any Court
subordinate thereto."
11. The provision expressly press on bar on the power of
High Court to entertain any Revision Application for
reversing any decree or order against which the appeal lies
to the High Court or to any Court subordinate to the High
Court, therefore, as per settled law, the High Court is not
competent to exercise his power under Section 115 of Code
of Civil Procedure in respect of order from which an
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appeal losses.
12. The learned advocate for the applicant was
specifically asked at the time of hearing of this Revision
Application how the Revision Application is maintainable
and that the remedy of petitioner is to prefer an appeal
over the impugned order before the competent Court for
which the learned advocate for the petitioner had stated
that the Executing Court had not adjudicated on the
dispute raised by the petitioner in the Execution Petition
No.51 of 2010, and therefore, as there is no adjudication,
the Revisional Court has jurisdiction to decide the present
matter. The learned advocate for the petitioner has relied
on the judgment reported in AIR OnLine 2021 J & K 917
and AIR 1937 OUDH 268, AIR OnLine 2023 AP 836, the
judgments on which the petitioner wants to rely will be of
no assistance in the present case as in the said fact and
the case there was no adjudication of the matter. In the
present case, relief that has been sought by the applicant
is just to join the applicant as party in the Execution
Petition and to stay the proceedings till the time Civil Suit
No.2 of 2020 is finally decided, and after going through
the entire record and that considering the submissions, the
Executing Court has adjudicated the dispute by an order
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on 28.11.2024 and after going through the entire order
passed by the Executing Court in Execution Petition No.51
of 2020 the Executing Court has adjudicated the dispute
and has also given reasons for the said adjudication and
though as per provision of Order 21 Rule 58(4) the present
Civil Application will not lie and the remedy will be to
file an appeal.
13. For the foregoing reasons, the present Civil
Application is dismissed.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
