Gujarat High Court
Prabhav Co-Operative Housing Society ... vs Heirs And Lrs Of Bechardas Govindram on 18 February, 2025
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Reserved On : 24/01/2025
Pronounced On : 18/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19656 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 14098 of 2019
With
CIVIL APPLICATION (FOR INJUCTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 14098 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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PRABHAV CO-OPERATIVE HOUSING SOCIETY LTD.
Versus
HEIRS AND LRS OF BECHARDAS GOVINDRAM & ORS.
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1
MR. SHYAM K SHELAT(6552) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3,4
MR JF MEHTA(461) for the Respondent(s) No. 1,1.2,1.3
MR RD DAVE(264) for the Respondent(s) No. 2.1,2.2,2.3,2.4
ROHAN A SHAH(7497) for the Respondent(s) No. 5
RUSHABH H SHAH(7594) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. The word of the Privy Council, stated more than a
century ago, is relevant today, which is so referred to and
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observed by the Honourable Supreme Court of India in the
case of Jini Dhanrajgir and Another vs. Shibu Mathew and
Another, reported in 2023 SCC Online SC 643, wherein it has
been observed as under:-
"[2] More than a century and a half back, the Privy Council
(speaking through the Right Hon. Sir James Colville) in The
General Manager of The Raj Durbhunga, Under the Court of Wards
vs. Maharajah Coomar Ramaput Singh, 1872 14 MooIndApp 605
lamented that the difficulties of litigants in India indeed begin
when they have obtained a decree. A reference to the above
observation is also found in the decision of the Oudh Judicial
Commissioner's Court in Kuer Jang Bahadur vs. Bank of Upper
India Ltd. Lucknow, 1925 AIR(Oudh) 448. It was ruled there that
the Courts had to be careful to ensure that the process of the
Court and the laws of procedure were not abused by judgment-
debtors in such a way as to make the Courts of law instrumental
in defrauding creditors, who had obtained decrees in accordance
with their rights.
[3] Notwithstanding the enormous lapse of time, we are left
awestruck at the observation of the Privy Council which seems to
have proved prophetic. The observation still holds true in present
times and this case is no different from cases of decree-holders'
woes commencing while they are in pursuit of enforcing valid and
binding decrees passed by civil Courts of competent jurisdiction.
The situation is indeed disquieting, viewed from the perspective of
the decree- holders, but the law, as it stands, has to be given
effect whether the Court likes the result or not. In Martin Burn
Ltd. vs. Corporation of Calcutta, 1966 AIR(SC) 529, this Court held
that a Court has no power to ignore that provision to relieve what
it considers a distress resulting from its operation."
(Emphasis supplied).
2. Both these petitions, though filed under Article 226 and
227 of the Constitution of India, but considering the prayers
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made in the respective petitions, would fall only under Article
227 of the Constitution of India. The following prayers are
being made in the respective petitions, which read as under:
PRAYER IN SPECIAL CIVIL APPLICATION NO.14098 OF 2019
"(A) This Hon'ble Court may be pleased to issue a writ
of certiorari and/or any other appropriate writ, order or
direction to quash and set aside the impugned order
dated 18.2.2019 passed below applications exhs. 184,
203, 214, 215, 216 and 222 in Regular Execution Petition
No. 11 of 2016 (Annexure: A Colly).
(B) This Hon'ble Court may be pleased to issue a writ of
certiorari and/or any other appropriate writ, order ог
direction declaring that proceedings by way of Regular
Execution Petition No. 11 of 2016 in the court of 4th
Additional Senior Civil Judge, Ahmedabad (Rural) at
Mirzapur, are illegal, unjust, improper and without
jurisdiction.
(C) This Hon'ble Court may be pleased to issue a writ of
certiorari and/or any other appropriate writ, order or
direction declaring that Sale Deed dt. 8-4-2019 (Annex. E)
in favour of the decree holders executed by the Court
Commissioner is void which is in violation of sec. 63 r/w
83A of the Gujarat Tenancy and Agricultural Lands Act
and in breach of condition imposed by the Civil Court in
the Decree itself. This Hon'ble Court further be pleased to
declare that consequently, sale deed executed by decree
holders in favour of Resp. No.5 Narendrabhai maganbhai
Patel is also void ab initio, unenforceable and be pleased
to quashed and set aside the same.
(D) Pending hearing and final disposal of the present
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petition, the respondents be restrained from transferring,
alienating, creating any charge thereon and or dealing
with the suit land i.e. Survey No.242/7 of Bodakdev, Tal.
Daskroi, Dist. Ahmedabad in any manner.
(E) Pending admission, hearing and final disposal of this
petition, this Hon'ble Court may be pleased to stay the
execution, implementation and operation of the impugned
order dated 18.2.2019 passed by 4th Additional Senior
Civil Judge, Ahmedabad (Rural) at Mirzapur, passed
below applications exhs. 184, 203, 214, 215, 216 and 222
in Regular Execution Petition No. 11 of 2016 (Annexure:
A Colly) and further be pleased to stay further
proceedings of Regular Execution Petition No. 11 of 2016
pending in the court of 4th Additional Senior Civil Judge,
Ahmedabad (Rural) at Mirzapur.
(F) Any other and further relief as may be deemed fit
and proper may be granted by this Hon'ble Court in the
interest of justice."
PRAYER IN SPECIAL CIVIL APPLICATION NO.19656 OF 2019
"A) The Hon'ble Court be pleased to admit and allow the
present petition by issuing a writ of certiorari or any
other appropriate writ, order or direction to quash and
set aside the impugned order at Annexure G (Colly) dated
18/2/2019 passed by the 4th Addl. Senior Civil Judge,
Ahmedabad Rural, Mirzapur below applications Exhs.
184, 203, 214, 215, 216 and 222 in Regular Execution
Petition No. 11/2016 in Special Civil Suit No. 83/1981
and be further pleased to declare acts undertaken
pursuant to said impugned order as illegal, non-est, and
without jurisdiction.
B) Pending hearing and final disposal of the present
petition the Hon'ble Court be pleased to stay the
execution, operation and implementation of the impugned
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order dated 18/2/2019 passed by the 4th Addl. Senior
Civil Judge, Ahmedabad Rural, Mirzapur below
applications Exhs. 184, 203, 214, 215, 216 and 222 in
Regular Execution Petition No. 11/2016 in Special Civil
Suit No. 83/1981 on such terms and conditions which the
Hon'ble Court may deem fit and proper;
C) Pending hearing and final disposal of the present
petition the Hon'ble Court be pleased to restrain the
Respondents from transferring, dealing with, alienating,
creating any charge on the land bearing Survey No.
242/7 of Bodakdev, Taluka: Daskroi, Dist: Ahmedabad, in
any manner whatsoever, and to maintain status quo as to
title and possession of subject property.
D) Any other and further orders may be deemed just and
proper looking to the facts and circumstances of the case
and in the interest of the justice."
3. Considering the aforesaid, I would like to treat these
petitions as filed under Article 227 of the Constitution of India
only and accordingly, decide the controversy raised in the
respective petitions.
4. The facts in the respective petitions are not much in
dispute, as both the petitioners are challenging the impugned
order dated 18.02.2019, passed by the Executing Court.
Therefore, with consent of learned advocate of the respective
parties of both these petitions, both were heard together at
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length and accordingly, I would like to pass a common
judgment.
5. If so required, as and when necessary, the parties will be
referred to as per their original position before the Trial Court.
6. To have clarity about the status of the respective parties
joined in the respective petitions, their status is referred to as
under:
6.1 The petitioners of Special Civil Application No. 14098
of 2019 happen to be the legal heirs of Jeevabhai Natabhai -
judgment debtor, (hereinafter referred to as "judgment
debtor"). The petitioner of Special Civil Application No.19656
of 2019 is a cooperative society who purchased the suit
property during the pendency of the Execution Petition from
the petitioners of the aforesaid Special Civil Application No.
14098 of 2019 (hereinafter referred to as "obstructor").
6.2 In Special Civil Application No. 14098 of 2019,
Respondent No. 1 happens to be the legal heir of Bechardas
Govindram - decree holder (hereinafter referred to as "decree
holder"). Respondent No. 2 appears to be Judgment Debtor
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No. 1 (hereinafter referred to as 'Judgment Debtor 1'). The
obstructor is joined as Respondent No. 3.
6.3 Whereas in Special Civil Application No. 19656 of
2019, apart from said persons, Respondent No.5 is joined who
happens to be a subsequent purchaser, in whose favour, the
decree holder has executed the registered sale deed on
13.05.2019, which is after passing of order, impugned in the
petitions (hereinafter referred to as "subsequent purchaser").
7. The short facts, which are necessary to resolve the
controversy involved in the petitions, are as follows:
7.1 One Bechardas Govindlal (decree holder) had entered
into an agreement to sale on 16.06.1972 with one Jivabhai
Nathabhai (judgement debtor) in relation to suit land. It
appears that said Jivabhai was the owner of the suit land
bearing Survey No. 242/7, situated at Bodakdeve, admeasuring
1 acre and 10 Gunthas - about 5059 sq.mts.
7.2 The said Bechardas Govindram had filed Special Civil
Suit No.83 of 1981 before the Civil Judge (Senior Division),
Ahmedabad at Mirzapur, thereby sought performance of the
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aforesaid agreement to sale. Jivabhai Nathabhai and one
Bhogilal Bhaichandbhai were the defendants of the said suit,
i.e., Judgment Debtor and Judgment Debtor 1, respectively.
7.3 After hearing the parties and appreciating the evidence
on record, the Trial Court, vide its judgment and decree dated
22.02.1989, partly allowed the aforesaid suit in favour of the
plaintiff - decree holder.
7.4 The Execution Petition, being Special Darkhast No. 65
of 1989, appears to have been filed by the decree holder on
06.07.1989. The judgment debtor appears to have filed
objections against such execution at Exhibit 17. Judgment
Debtor No. 1 had adopted such objections.
7.5 It further appears that during the pendency of the
aforesaid Execution Petition, the judgment debtor had
challenged the judgment and decree dated 22.02.1989 by filing
a First Appeal before this Court, being First Appeal No. 219 of
1996. Since there was a delay in filing such appeal, Civil
Application No.521 of 1996 came to be filed on 18.01.1996.
This Court, vide its judgement/order dated 09.03.1998, appears
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to have not condoned the delay, thereby First Appeal would
not survive being not registered then, came to be dismissed.
7.6 After lost in the first appeal, the judgment debtor
executed a registered sale deed of the suit land which was
presented on 03.02.1998 but registered on 21.03.1998 in favour
of the obstructor, albeit, through their power of attorney.
7.7 Thereafter, the judgment debtor had filed Regular Civil
Suit No. 378 of 1999 for cancellation of such registered sale
deed executed in favour of the obstructor, which came to be
dismissed and against which, an appeal is pending before the
District Court concerned.
7.8 Likewise, the decree holder appears to have filed
Regular Civil Suit No.72 of 2000 against the obstructor and
others, seeking cancellation of the aforesaid sale deed dated
21.03.1998. This suit appears to have been dismissed for
default as on today.
7.9 After appreciating all the objections of judgment
debtors, vide its judgment and order dated 29.04.2004, the
Executing Court allowed the Execution Petition by passing a
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detailed order below Ex.1, which will be referred in the later
part of the judgment.
7.10 As per order dated 29.04.2004 passed by the Executing
Court, decree holder appears to have deposited balance sale
consideration of Rs. 34,005/ in the Court on 01.07.2004.
7.11 It further appears that the judgment debtor had
challenged the aforesaid order passed by the Executing Court
by way of Civil Revision Application No. 399 of 2004 before
this Court, which was dismissed by this Court, vide its
judgment and order dated 24.03.2005. Such fact is not
disclosed in these petitions which is nothing but a suppression
of material fact by the petitioners and its effect will consider
in later part of this judgement.
7.12 Having lost in the appeal as well as all objections of
judgement debtor were turn down in execution which was
confirmed by this Court by dismissing Revision then, the
judgment debtor could not have any reasons to object the
execution petition. However, the decree holder was unable to
get the fruits of the decree for quite long time, which is
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confirmed from the following events.
7.12.1 The decree holder appears to have filed an
application below Exhibit 156 on 30.11.2004, seeking the
appointment of a Court commissioner for execution of the sale
deed. As observed hereinabove, the judgment debtors had lost
their objections before the Executing Court and so also lost in
appeal and revision before this Court then, at this stage, the
obstructor raised an objection against Exhibit 156 by filing an
objection application below Exhibit 159 on 30.12.2004,
followed by another two applications filed below Exhibits 162
and 164 on 30.12.2004 itself.
7.12.2 The obstructor had contended in its applications
filed below Exhibit 159/162/164 that the decree holder should
not disturb its possession as obstructor is bona fide purchaser
value without notice having purchased suit property through
registered sale deed from the different legal heirs of said
Jivabhai so mentioned in the applications. So, in its
applications filed below Exhibits 162/164, it had requested for
rejection of the prayer of decree holder filed below Exhibit 156
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for execution of the sale deed in favour of the decree holder.
7.12.3 The Executing Court again decided the objections of
the obstructor, vide its order dated 13.01.2006, thereby
allowing the application of the obstructor filed below Exhibit
159, whereas the application of the decree holder filed below
Exhibit 156 as well as applications of obstructor filed below
Exhibits 162 and 164 were rejected. So, the possession of the
obstructor was protected.
7.12.4 Being aggrieved by the aforesaid order, the decree
holder had challenged the aforesaid order before this Court by
way of Special Civil Application No. 11781 of 2006, wherein
after hearing the parties, this Court, vide its order dated
24.01.2012, recorded the statement of learned counsel
appearing the obstructor that the obstructor is not pressing its
application filed below Exhibit 159 (which was allowed by the
Executing Court). So, in view of not pressing application at
Exhibit 159 by the obstructor, this Court in its aforesaid order
observed that the observations made in the order dated
13.01.2006 with regard to the said application shall be
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considered as ineffective. Consequently, the decree holder has
not pressed the aforesaid petition.
7.12.5 Nonetheless, liberty was reserved in favour of the
parties to file any appropriate proceeding before the
appropriate Court, including in the pending proceedings
between the parties. Though, no such applications were filed
either by judgement debtor or obstructor till passing of the
impugned order.
7.12.6 It is also required to be noted here that during this
period, the judgment debtors remained silent and appear to
have not tendered their objections but only obstructor had
raised an objection against an application of the decree holder
filed below Exhibit 156.
7.12.7 When the application of the obstructor filed below
Exhibit 159 was withdrawn, again on 31.03.2012, the decree
holder had filed a similar application making prayer as made
in its application at Exhibit 156, which was filed below Exhibit
184, its impugned in the present petition.
7.12.8 Now, at this stage, the judgment debtors have come
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into the picture and strongly objected to the application at
Exhibit 184 filed by the decree holder, and filed objections
below Exhibit 203, 214, 215, 216 and 222. No written
objections appear to have been filed by the obstructor, but
their oral objections have been taken note of by the Executing
Court in its impugned order.
7.12.9 After hearing the parties at length, considering the
objections so raised by the judgment debtors, and taking note
of the aforesaid orders passed by the Executing Court, vide its
impugned order dated 18.02.2019, the Executing Court has
rejected all the objections of the judgment debtors/obstructor,
thereby allowed the impugned application filed by the decree
holder below Exhibit 184.
7.12.10 After the passing of the impugned order, the Court
commissioner executed a registered sale deed on 08.04.2019 in
favour of the decree holder, and later on, the decree holder
executed a registered sale deed in favour of respondent No.5 -
the subsequent purchaser on 13.05.2019 to whom possession
has been delivered through process of the execution.
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7.12.11 After passing of the impugned order and ouster of
the obstructor from suit land, it appears that obstructor has
filed objections which are submitted at Annexure H to its
petition. It is claimed to be filed under Order XXI Rule 97 to
99, read with Section 47 and 151 of the Code of Civil
Procedure, 1908 (herein after referred as 'Code, 1908'), is
claimed to be pending as on date before the Executing Court.
8. Being aggrieved and dissatisfied with the impugned order
dated 18.02.02019 passed by the Executing Court, being 4 th
Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur,
Ahmedabad, below Exhibit 184, along with below Exhibit 203,
214, 215, 216, and 222, in Regular Execution No.11 of 2016,
the same has been challenged by way of these petitions by the
judgment debtor and obstructor respectively. The respondents
have opposed the aforesaid petitions, whereby the decree
holders have filed their detailed reply.
SUBMISSION OF THE JUDGMENT DEBTOR - PETITIONERS OF
SPECIAL CIVIL APPLICATION NUMBER 14098 OF 2019
9. Learned advocate Mr. R.D. Dave, appearing for the
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judgment debtor, would submit that the impugned order
passed by the Executing Court is dehors the provisions of law
and it exceeds and travelled beyond the decree originally
passed by the competent Court.
9.1 Learned advocate Mr. Dave would further submit that
the decree holder, having failed to obtain necessary
permission, which was required to be taken as per the decree
as well as the order dated 29.04.2004 passed by the Executing
Court below Exhibit 1 in the Execution Petition, execution of
the sale deed in favor of the decree holder by the Court
Commissioner is expressly illegal and requires to be quashed
and set aside.
9.2 Learned advocate Mr. Dave would further submit that
the decree holder, having failed to comply with the condition
of the decree, did not deposit the remaining amount and also
failed to obtain necessary permission from the Collector under
Section 63 of the Gujarat Tenancy and Agricultural Lands Act,
1948, so, the impugned order is bad in law and requires
interference by this Court in the exercise of its power under
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Article 227 of the Constitution of India.
9.3 Learned advocate Mr. Dave would further submit that
when the judgment and decree dated 22.02.1989 were not
executed for more than 30 years, as the decree holder failed to
comply with the principal condition of the decree and did not
pay the consideration within the stipulated time, nor applied
for its extension permission then as per Section 28 of the
Specific Relief Act, the decree is unenforceable and the
judgment debtor can rescind such contracts.
9.4 Lastly, Learned advocate Mr. Dave would submit that
when the Court commissioner has executed a sale deed in
favour of the decree holder without fulfilling the conditions
stipulated in the decree, such a sale deed is ex facie illegal
and requires to be quashed and set aside, as the Executing
Court has travelled beyond the decree.
9.5 Making above said submissions, Learned advocate Mr.
Dave would request this Court to allow the petition.
9.6 To buttress his arguments, he has relied upon the
following decisions passed by the Honorable Supreme Court of
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India and this Court, which are as under:-
(i) P. Shyamala Vs. Gundlur Masthan repored in AIR
2023 1224 (SC);
(ii) Prem Jeevan Vs. K.S.Venkata Raman reported in
2017 (11) SCC 57;
(iii) S.Bhaskaran Vs. Sebastian (Dead) Lrs. Reported in
2019 (9) SCC 161;
(iv) Rameshbhai Chaturbhai Prajapati and Ors. Vs.
Minaxiben Wd/o Rasiklal Tilakram & Ors. reported in
2011 (2) GLH 760.
SUBMISSION OF THE OBSTRUCTOR - PETITIONERS OF
SPECIAL CIVIL APPLICATION NO.19656 OF 2019
10. Learned advocate Mr. K. V. Shelat, appearing for the
petitioner/s -obstructor, would adopt the arguments of learned
advocate Mr. R.D. Dave, appearing for the judgment debtor.
10.1 Nonetheless, Mr. Shelat would submit that the
impugned order also suffers from various inherent defects,
whereby the impugned order is not sustainable in law.
10.2 Learned advocate Mr. Shelat would submit that it is
true, pending execution, the obstructor had purchased the suit
property through a registered sale deed on 21.03.1998, but had
purchased the undivided share of the co-sharer/owners of the
suit property, who had never entered into any agreement to
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sell with the decree holder. Therefore, the provisions of Rule
102 of Order XXI of the Civil Procedure Code, 1908
(hereinafter referred to as "CPC"), would not be applicable to
the obstructor.
10.3 Learned advocate Mr. Shelat would submit that
originally defendant No.1, i.e. Jivabhai Nathabhai was not the
sole owner of the suit property in question but was a co-
owner/sharer of the suit property in question. Therefore, the
impugned order for the appointment of the Court commissioner
for the execution of the sale deed for the entire suit property
is contrary to the provisions of the Transfer of Property Act as
well as the Hindu Succession Act, as other co-owners/sharers
of the suit property were neither parties to the agreement to
sell nor the aforesaid suit.
10.4 Learned advocate Mr. Shelat would further submit that
there were in total six co-owners of the suit property and the
obstructor, having purchased 5/6th share of other co-sharers of
suit property than right, title, and interest of original
defendant No.1 - Jivabhai Nathabhai was not jeopardized
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thereby the impugned order for execution of the sale deed in
favour of the decree holder for the entire suit property is bad
in law.
10.5 Learned advocate Mr. Shelat would further submit that
the other co-owners/ sharers of the suit property (petitioners of
SCA/14098/2019), after the execution of the sale deed, which
was executed through their power of attorney holder,
challenged such sale deed by way of Regular Civil Suit No.378
of 1999, which came to be dismissed. However, the appeal
against the judgment and decree is pending before the District
Court.
10.6 Learned advocate Mr. Shelat would further submit that
the decree holder had also filed Regular Civil Suit No.72 of
2000, challenging such a sale deed executed in favour of the
obstructor by other co-sharers thereby sought its cancellation.
However, such a suit filed by the decree holder was dismissed
for default and once restored back on file, but again dismissed
for default, and has not been restored as on date.
10.7 Learned advocate Mr. Shelat would submit that the
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right, title, and interest of the obstructor have already been
recognized by the Civil Court, and the efforts to challenge its
sale deed is already culminated into the dismissal of said suits.
10.8 Learned advocate Mr. Shelat would submit that in
light of the aforesaid facts and circumstances of the case, when
the obstructor has a right, title, and interest and has purchased
5/6th share of the other co-owners/sharers out of six sharer of
the suit property in question, the impugned order passed by
the Executing Court, thereby registering the sale deed executed
in favour of the decree holder by the Court commissioner,
requires to be declared null and void.
10.9 Learned advocate Mr. Shelat would submit that as a
consequence, the ouster of the obstructor from suit land is bad
in law, for which they have filed necessary objections after the
passing of the impugned order. Learned advocate Mr. Shelat,
learned advocate, would submit that considering the provisions
of Order XXI Rule 97 to 102 of the Code, 1908, such
objections are valid and require to be decided by the Executing
Court in light of the aforesaid facts and circumstances of the
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case.
10.10 Making above said submissions, Learned advocate Mr.
Shelat would request this Court to allow the petition.
10.11 To buttress his arguments, he has relied upon
following judgments:-
(i) Silverline Forum Pvt. Ltd. v. Rajiv Trust and
another. reported in (1998) 3 SCC 723;
(ii) Bhramdeo Chaudhary v. Rishikesh Prasad Jaiswal
reported in (1997) 3 SCC 694;
(iii) Shreenath v. Rajesh reported in (1998) 4 SCC 543;
(iv) Har Vilas v. Mahendra Nath reported in (2011) 15
SCC 377;
(v) Sameer Singh v. Abdul Rab reported in (2015) 1
SCC 379;
(vi) K. Kalpana Saraswathi Vs. P.S.S. Somasundaram
Chettiar reported in (1980) 1 SCC 630;
(vii) Hasham Abbas Sayyad v. Usaman Abbas Sayyad
reported in (2007) 2 SCC 355;
(viii) W.B. Essential Commodities Supply v. Swadesh
Agro Farming reported in (1999) 8 SCC 315;
(ix) P.R. Yelumalai v. N.M. Ravi reported in (2015) 9
SCC 52.
SUBMISSION OF THE DECREE HOLDERS AND SUBSEQUENT
PURCHASERS
10.12 Learned Senior Counsel Mr. R.S. Sanjanwala with Mr.
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Rohan A. Shah, learned advocate appearing for respondent
No.5 - the subsequent purchaser in Special Civil Application
Number 19656 of 2019, along with learned advocate Mr.
Jayesh F. Mehta, for the decree holder, have vehemently
objected to these petition and would jointly submit that
present petitions require to be dismissed with exemplary costs,
as there is material suppression in the present petitions.
According to both these advocates, by withholding relevant
facts and the orders passed either by the Executing Court or by
this Court, the petitioners have filed the present petitions,
thereby mislead this Court.
10.13 Learned Senior Counsel Mr. Sanjanwala, appearing for
the subsequent purchaser with learned advocate Mr. J. F.
Mehta, appearing for the decree holder would submit that
there is a detailed affidavit-in-reply filed by the decree holders
pointing out the suppression of material facts by the judgment
debtor in his petition. There is no rejoinder is filed denying
such fact. They would submit that without disclosing the
earlier round of litigations, which has reached up to this
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Court, having failed so in their attempt, in another round of
litigation, the judgment debtor has re-agitated the issues,
which is not permissible in law.
10.14 Learned advocate Mr. Mehta would submit that when
all objections of the judgment debtor had been rejected by the
Executing Court vide its order dated 29.04.2004, passed below
Exhibit 1 in the original Execution Petition, which was
confirmed by this Court vide its order dated 24.03.2005 by
rejecting their Civil Revision Application No.399 of 2004,
nothing was required to be agitated by the judgment debtor in
the impugned application filed by the decree holder for
execution of the sale deed in their favour. He would submit
that the challenge to the order dated 29.04.2004 in the
revision petition preferred before this Court is not disclosed in
the petition by the judgment debtor, which is a material
suppression of fact and goes to the root of the matter.
10.15 Learned advocate Mr. Mehta would submit that as per
the settled legal position of law, even the principle of res
judicata would apply in the execution, thereby the judgment
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debtor is prevented from objecting to the execution of the
decree on any grounds that were either raised and rejected or
could have been raised but were not raised being waived.
10.16 Learned advocate Mr. Mehta would submit that when
the petitioners are not coming with clean hands then, while
seeking equitable relief from this Court, this petition may not
be entertained.
10.17 Learned advocate Mr. Mehta would further submit that
at no point of time, the judgment debtor has shown his
readiness and willingness to comply with any of the conditions
imposed in the decree and order dated 29.04.2004 by the
Executing Court. Therefore, later on, there is no right available
to the judgment debtor to contend that there is non-
compliance with conditions by the decree holder.
10.18 Learned advocate Mr. Mehta would submit that there
is no time limit fixed by the competent Court while granting
the decree in favour of the plaintiff to deposit the amount, and
it is misconceived on the part of the petitioners to rely upon
Section 28 of the Specific Relief Act. In fact, after passing of
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the order dated 29.04.2004, as per said order, decree holder
has deposited balance sale consideration on 01.07.2004 then as
such said plea of judgement debtor is misconceived at law.
10.19 Learned advocate Mr. Mehta would further submit that
the decree holder was an agriculturist, which is clearly stated
in the Execution Petition itself, filed in the year 1989. This
fact is also observed in the original judgment passed by the
civil Court on 20.02.1989, wherein paragraph 21 clearly
suggests that no question has been put to the plaintiff
regarding his status as a non-agriculturist. Therefore, he would
contend that there was no need for the decree holder to obtain
any permission from the Collector, as submitted by the
judgment debtor.
10.20 Learned advocate Mr. Mehta would further submit that
once all objections were decided by the Executing Court in the
first round of litigation, in a subsequent round of litigation,
neither the judgment debtor nor the obstructor has any say
before the Executing Court. Therefore, there is no error
committed by the Executing Court in rejecting those objections
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in its impugned order.
10.21 Learned Senior Counsel Mr. R.S. Sanjanwala with
learned advocate Mr. Rohan Shah, albeit, adopting the
aforesaid arguments of learned advocate Mr. Mehta would
submit that they are bona fide purchasers of the property from
the decree holder, and the objections so raised by the
judgment debtor and obstructor are barred by the principle of
Res-judicata and are required to be thrown out at the
threshold.
10.22 Learned Senior Counsel Mr. Sanjanwala, would submit
that when the judgment debtor has lost all their objections,
which were raised and decided by the Executing Court and
confirmed by this Court at the first instance, they have no
right to raise any such objections, otherwise, there will be no
end to the execution.
10.23 Learned Senior Counsel Mr. Sanjanwala would further
submit that it is now well-settled law that the principle of Res-
judicata/Constructive Res-judicata would apply in execution
proceedings itself. He would rely upon explanation VII to
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Section 11 of C.P.C.
10.24 Learned Senior Counsel Mr. Sanjanwala would rely
upon the decision of the Honorable Supreme Court in Barkat
Ali and another vs. Badrinarain (Dead) by Lrs., reported in
2008 (4) SCC 615.
10.25 Learned Senior Counsel, Mr. Sanjanwala would submit
that, as far as the obstructor is concerned, who lost in the
second round of litigation when its application filed below
Exhibit 159 was withdrawn in the year 2012, this is a
concluding point for the obstructor, who cannot now be
permitted to obstruct the decree at any cost.
10.26 Learned Senior Counsel, Mr. Sanjanwala would
contend that the obstructor have deliberately not submitted
complete set of facts and the orders passed by the Executing
Court below Exhibits 156, 159, 162 and 164, thereby
suppressed material facts.
10.27 Learned Senior Counsel, Mr. Sanjanwala would submit
that once the obstructor lost in his application filed below
Exhibit 162, thereby challenged the prayer of the decree holder
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made in his application filed below Exhibit 156, then later in
point of time, when decree hold had submitted similar
application at Exhibit 184 (impugned application), the
obstructor has no right to raise any grievance by objecting to
the impugned application filed by the decree holder at Exhibit
10.28 Learned Senior Counsel Mr. Sanjanwala would further
submit that this Court, vide its order dated 24.01.2012 in
Special Civil Application no.11781 of 2006, has categorically
recorded the submissions of the learned advocate for the
obstructor, whereby the obstructor withdrew his objection
application below Exhibit 159 unconditionally. Consequently,
this Court, in its aforesaid order, has observed that the order
impugned in the petition and the observations made therein
with regard to the application at Exhibit 159 filed by the
obstructor shall be considered ineffective.
10.29 So, learned Senior Counsel Mr. Sanjanwala would
submit that the obstructor has no independent right to obstruct
the execution of the decree once the judgment debtors have
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lost their right to object in any subsequent round of litigation
as well as having purchased the suit property from the
judgment debtor during the pendency of the execution, would
disentitle him from objecting as per the provisions of Rule 102
of Order XXI of the Code of Civil Procedure, 1908.
10.30 Learned Senior Counsel Mr. Sanjanwala would submit
that the subsequent purchaser has purchased the suit property
through the execution of a registered sale deed from the
decree holder and is in possession of the suit property. He
would submit that the applications filed by the obstructor,
post-execution of the sale deed in favour of the decree holder,
are nothing but dilatory tactics. By hook or crook, either the
judgment debtor or the obstructor want to keep the dispute
alive, which is required to be quietus, otherwise, neither the
decree holder nor the subsequent purchasers will be able to
enjoy the decree.
10.31 So, Learned Senior Counsel Mr. Sanjanwala would
request this Court to dismiss and reject the so-called objections
of the obstructor filed under Order XXI Rule 97 to 99 of the
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Code of Civil Procedure, 1908, in Special Civil Application
No.19656 of 2019.
10.32 Thus, Making above said submissions, Learned Senior
Counsel Mr. Sanjanwala and Learned advocate Mr. Mehta
would request this Court to dismiss both these petitions with
exemplary costs.
10.33 To buttress their arguments, they would rely upon the
following decisions of the Honorable Supreme Court of India:-
(i) Silverline Forum Private Limited vs. Rajiv Trust and
Another, reported in 1998 (3) SCC 723,
(ii) Usha Sinha vs. Dina Ram and others, reported
in 2008 (7) SCC 144.
(iii) Haji Abdul Mateen (Decd.) Through his Lrs.
vs. Sheikh Haji Firozuddin And others, reported in
2014 SCC Online Del 1397.
(iv) Swastik Builders, nagpur and another vs.
Dr.Shobha W.o Bhaskar Kaore and others reported in
2020 SCC Online Bom 224.
(v) M/s Sharma Construction Compnany Nagpur
through its Partners and Others vs. Praveenkumar S.o
lilapat Bansal and others. in Writ Petition No.4406 of
2018 by the High Court of Judicature at Bombay,
Nagpur Bench.
10.34 Learned senior counsel, Mr. Sanjanwala, appearing for
subsequent purchaser would lastly submit that he has already
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supplied a copy of paper book, which includes all previous
orders passed by Executing Court and this Court, which may
be taken on record. On inquired by this Court, it is confirmed
by learned Advocate of Mr. K. V. Shelat appearing for the
petitioner-obstructor that said paper book is received by him
long back and not disputing any of documents including orders
submitted with paper book. So, such documents/orders in the
form of the paper book is taken on record. The orders which
are part of paper book will be referred in later part of this
judgement.
11. No other or further submissions are made being made by
any of the learned advocates appearing for the parties.
ANALYSIS
12. Before adverting to the whole issue germane in the
present petition, this Court would like to remind itself and
would like to refer decision of the Hon'ble Supreme Court of
India in the case of Sameer Suresh Gupta TR PA Holder vs.
Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein
the law has been summarized thereby the scope of the power
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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:-
"[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 subordinate
Court has assumed a jurisdiction which it does not have or
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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 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
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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)
"(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
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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'.
(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.
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(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.
(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)
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13. It is also apt to reply upon the decision of Garment Craft
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
Constitution of India is examined and explained in a number
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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)
14. The controversy which arises in the present petitions in
regards to the execution of a decree, which was passed in the
year 1989 i.e. 22.02.1989 but was finally executed through the
Executing Court vide its impugned order dated 18.02.2019
almost after 30 years.
15. At the outset, this Court would like to observe a few
facts and also the conduct of the respective petitioners.
16. Suppression of material facts by petitioners.
16.1 The judgment debtor, having lost before the Executing
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Court while raising all the permissible objections decided
against them, whereby the Executing Court vide its order dated
29.04.2004 has allowed the execution filed by the decree
holder. The aforesaid order came to be challenged by the
judgment debtor before this Court by way of Civil Revision
Application no. 399 of 2004, which came to be rejected by this
Court vide its judgment and order dated 24.03.2005. This fact
was well within the knowledge of the petitioners (judgment
debtors) of Special Civil Application no.14098 of 2019, but for
reasons best known to them, they have not disclosed it in the
petition.
16.2 It is true that the order of the Executing Court passed
on 29.04.2004 has been placed with the petition, but there is
complete silence about the challenge of said order before this
Court and having lost in such challenge.
16.3 The judgment debtor has even not disclosed the
material fact that the original judgment and decree dated
22.02.1989 came to be challenged by way of Regular First
Appeal no.219 of 1996 along with a delay application being
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Civil Application No.521 of 1996, which came to be rejected
on 09.03.1998.
16.4 The judgment debtor has even not disclosed the fact
that after the rejection of its revision application by this Court,
the decree holder had filed an application below Exhibit 156
for the appointment of Court commissioner for execution of
sale deed, which was objected by the obstructor by filing an
obstruction application below Exhibit 159, 162, and 164, and
the order passed thereon by the Executing Court.
16.5 According to this Court, all the aforesaid suppression
of facts are material suppression goes to the root of the matter
to decide the controversy involved in the petition, and only on
this ground alone, the Special Civil Application No.14098 of
2019 filed by the judgment debtor requires to be dismissed
with exemplary costs.
16.6 Learned advocate Mr. R. D. Dave, appearing for the
judgment debtor, during course of his submission, had shown
his complete ignorance about the aforesaid facts and the order
passed by this Court. Even though a detailed affidavit in reply
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is filed by the decree holder in the petition pointing out such
suppression, which I would not like to reproduce its contents
as I do not want to burden this judgment.
16.7 Nevertheless, the fact remains that the judgment
debtor was a party to the aforesaid revision as well as the first
appeal, which requires to be disclosed when they have filed
the present petition. Having not disclosed the true and correct
facts in the petition, and learned advocate Mr. Dave has
pleaded his ignorance, which is not digestible in light of the
fact that the reply of the decree holder discloses all the
suppression of material facts are already on record.
16.8 Likewise, it was also the duty of the obstructor to
place on record its earlier obstruction applications filed below
exhibits 159, 162, and 164, and the orders passed thereon by
the Executing Court. However, having not placed these in its
petition but as an eyewash and to come out from the
suppression of material facts, the obstructor has only placed on
record the order passed by this Court dated 24.01.2012 in
Special Civil Application No. 11781 of 2006 by not disclosing
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any facts regarding its applications filed at Exhibit 162/164.
Such conduct of the obstructor is deplorable. When the party
is aware of its application being filed and decided by the
Court, it was the duty of the party to place a complete set of
facts on record.
16.9 It is further to be observed that learned advocate Mr.
Shelat, during the course of his submission, had contended
that applications filed below exhibits 162 and 164 are pending
and without deciding such applications, the impugned order
has been passed by the Executing Court. As stated herein
above, copy of such applications filed at Exhibit 162/164 were
not submitted by the obstructor with its petition but placed by
the subsequent purchaser in paper-book. So, after getting reply
submissions made by learned advocates appearing for the
decree holder/the subsequent purchaser, later on, at the end of
hearing, learned advocate Mr. Shelat had accepted that when
the impugned order was passed by the Executing Court,
nothing was pending so far as the obstructor is concerned. If it
be so, there was no reason for the obstructor to file the
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present petition. Such petition by the obstructor is also
suppressing said material facts/documents is nothing but
frivolous litigation who, having purchased the suit property in
the midst of execution proceedings, has no right to obstruct it.
16.10 So, considering aforesaid facts and conduct of the
petitioners, both these petitions requires to be dismissed on
ground of suppression of such facts alone with exemplary
costs.
17. APPRECIATION OF SUBMISSIONS ON MERIT.
18. Even assuming for the time being that the aforesaid
suppressions are not material in nature, even then, the
objections, which are raised by the judgment debtor/obstructor
are barred by the principle of Res-judicata/Constructive Res-
judicata. It remains undisputed that in the earlier round of
litigations the Executing Court and this Court, having dealt
with all the objections of the judgment debtor and obstructor
vide its order dated 29.04.2004, 24.03.2005, 13.01.2006 and
24.01.2012 respectively, later on, neither the judgment debtor
nor the obstructor can be allowed to raise any objections,
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which are barred by principles of Res-Judicata/Constructive
Res-Judicata, Estoppel and Waiver.
18.1 As per plain reading of Section 11 of the Code, 1908,
more particularly its Explanation VII, it would also clear all
doubts in anyone's mind. The relevant provision of Section 11
of the Code, 1908 reads as under:-
"11. Res judicata.--No Court shall try any suit or issue
in which the matter directly and substantially in issue
has been directly and substantially in issue in a former
suit between the same parties, or between parties under
whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been
subsequently raised, and has been heard and finally
decided by such Court. .........
Explanation VII. -- The provisions of this section shall
apply to a proceeding for the execution of a decree and
references in this section to any suit, issue or former suit
shall be construed as references, respectively, to a
proceeding for the execution of the decree, question
arising in such proceeding and a former proceeding for
the execution of that decree. ....."
18.2 At this stage, it is profitable to rely upon the decision
of the judgment of the Honorable Supreme Court of India in
the case of Barkat Ali (supra), wherein, it has been held as
under:-
"11. There is no dispute and it has not been agitated that the
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order for proceeding by the judgment under Order 21 Rule 22
amounts to a decree under Section 47 CPC and it is appealable as
a decree i.e. to say it is not an appeal against the interim order
but an appeal against the decree which is provided against the
final order. It means that at the different stages of the execution,
orders passed by the executing court have attained finality unless
they are set aside by way of appeal before the higher forum.
Otherwise they bind the parties at the subsequent stage of the
execution proceedings so that the smooth progress of execution is
not jeopardised and the stage which reached the finality by dint of
various orders of Order 21, operates as res judicata for the
subsequent stage of the proceedings. Since the order passed at
different stages itself operates as a decree and is appealable as
such, the same cannot be challenged in appeal against subsequent
orders also, because appeal against an order passed under Order 21
Rule 22 does not amount to appeal against order at initial stage,
but amounts to a decree finally determining the question. That is
why no appeal against orders made under Order 21 has been
provided under Order 43.
12. In this background, where a judgment-debtor has an
opportunity to raise an objection which he could have raised but
failed to take and allowed the preliminary stage to come to an end
for taking up the matter to the next stage for attachment of
property and sale of the property under Order 21 Rule 23 which
fell within the above principle, the judgment-debtor thereafter
cannot raise such objections subsequently and revert back to earlier
stage of proceedings unless the order resulting in termination of
preliminary stage which amounts to a decree is appealed against
and order is set aside or modified.
13. The principles of res judicata not only apply in respect of
separate proceedings but the general principles also apply at the
subsequent stage of the same proceedings also and the same court
is precluded to go into that question again which has been decided
or deemed to have been decided by it at an early stage.
14. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] it was
observed as follows : (AIR pp. 999-1000, paras 10-11)
"10. ... Scope of principle of res judicata is not confined
to what is contained in Section 11 but is of more general
application. Again, res judicata could be as much applicable
to different stages of the same suit as to findings on issues
in different suits. ...
11. ... where the principle of res judicata is invoked in
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the case of the different stages of proceedings in the same
suit, the nature of the proceedings, the scope of the enquiry
which the adjectival law provides, the decision being
reached, as well as the specific provisions made on matters
touching such decision are some of the material and the
relevant factors to be considered before the principle is held
applicable."
15. In Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941] it was
observed as follows : (AIR pp. 943-44, para 8)
"8. The principle of res judicata applies also as between
two stages in the same litigation to this extent that a court,
whether the trial court or a higher court having at an earlier
stage decided a matter in one way will not allow the parties
to reagitate the matter again at a subsequent stage of the
same proceedings."
(Emphasis supplied).
18.3 It is also apt to rely upon the decision of Hon'ble
Gujarat High Court in the case of Ganchi Laxmichand
Ambaram vs. Tulsidas Madhavdas, reported in (1962) GLR
1032 : 1962 SCC OnLine Guj 20, wherein (Hon'ble Mr. Justice
P.N. Bhagwati, His Lordship then was) after appreciating the
principle laid down by the privy council in para- 9, 10, 11 &
12 held thus, as under :-
"9. The Privy Council thus applied the principle of constructive
res judicata in execution proceeding without any qualification or
reservation. The reason which commended itself to the Privy
Council for the application of the principle of constructive res
judicata was that if a party does not through his own default raise
whatever plea he can in a previous proceeding, he cannot be
permitted to raise the same plea in a subsequent proceeding
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merely because he neglected at the proper stage in the previous
proceeding to raise the plea of which he subsequently wants to
avail himself. Now this reason would apply equally whether the
party appears at the hearing of the previous proceedings and omits
to raise a certain plea or whether the party does not appear at the
hearing of the previous proceeding and, therefore, does not raise
the plea. I am, therefore of the opinion that according to this
decision of the Privy Council the principle of constructive res
judicata must apply to the execution proceeding without any
qualification of reservation such as the one laid down by the High
Court of Bombay in 45 Bom LR 519: (AIR 1943 Bom 252) (supra),
provided of course that the requisite conditions for the
applicability of the principle are satisfied.
10. The Supreme Court has also laid down in clear and
unmistakable terms in Mohanlal v. Benoy Krishna, (1952) 2 SCC
648: AIR 1953 SC 65 that the principle of constructive res judicata
applies to execution proceedings. As observed by Ghulam Hasan,
J., in that case "that the principle of constructive res judicata is
applicable to execution proceedings is no longer open to doubt.
See Ananda Kumar v. Sheikh Madan, 38 Cal W.N. 141: (AIR 1934
Cal 472) and 'Mahadeo Prasad v. Bhagwat Narain Singh', AIR 1938
Pat 427."
11. Having regard to these decisions of the Privy Council and
the Supreme Court, I must refuse to follow the decision of the
High Court of Bombay in 45 Bom LR 519 (AIR 1943 Bom 252)
(supra) even though that is a decision of a Division Bench of the
Bombay High Court.
12. I, therefore, take the view that if the necessary conditions are
satisfied the principle of constructive res judicata applies to
execution proceedings in all cases without any discretion in the
Court whether or not to apply the same having regard to the facts
and circumstances of a particular case. This being the position it is
clear that the executing Court having made the order on the notice
under Order XXI, Rule 22, directing issue of warrant for
attachment, it was not open to the applicant to raise at a
subsequent stage of the proceedings any conditions against the
execution of the decree."
(Emphasis supplied.)
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18.4 After going through the ratio of the aforesaid two
decisions, it is clear as a day that once the judgment debtor
and or obstructor have lost their right to object to the decree
in earlier round of litigations in the execution proceeding,
which was available to them, later in point of time, they are
not allowed to raise any new objections which were either
raised and failed or available to be raised but having not
raised, is barred by the principle of Res-judicata and
Constructive Res-judicata.
18.5 Thus, in view of the aforesaid facts and the law laid
down in the decision of the Honorable Supreme Court of India
in the case of Barkat Ali (supra) and Ganchi Laxmichand
Ambaram (Supra), I am of the view that the objections, which
are raised by the judgment debtor/obstructor below Exhibit
203, 214, 215, 216 and 222 are unsustainable and require to
be rejected by applying the principle of
Res-judicata/Constructive Res-Judicata.
18.6 Furthermore, the Executing Court has dealt with all
these objections in detail. As such I am in complete agreement
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with the reasons so recorded by the Executing Court in its
impugned order while rejecting such objections. Even
otherwise, merely a second view is possible which is none in
present case, would not be a ground to interfere by this Court
with the impugned order while exercising its power under
Article 227 of the Constitution of India.
19. It is worth to note that on 15th October 2015, the
executing court directed the decree holder to submit a draft
sale deed as per the decree, in accordance with Order XXI
Rule 34 of the CPC, with the executing court. Exhibit 203 is
an objection filed by the judgment debtor on 23.12.2016
against the draft sale deed submitted on 15.12.2014.
19.1 Exhibit 214 is a written submission and further
objection of the execution of sale deed, contending, inter alia,
that having not deposited the amount as per the decree, in
view of Section 28 of the Specific Relief Act read with Section
148 of the Code 1908, neither the decree holder nor the court
commissioner has the power to execute any sale deed,
especially, when the sale deed is already executed in favour of
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the obstructor. As such this objection is beyond scope of Order
XXI Rule 34 of the CPC as the judgement debtor could have
objected terms of draft sale deed but not the execution of sale
deed itself.
19.2 The applications, which were filed at Exhibit 215, 216,
and 222 by the judgement debtor were not entertained, being
not tenable at this juncture, in view of the order passed below
Exhibit 1 in the execution petition vide its order dated 29-04-
2004.
19.3 So far as the obstructor is concerned, although no
separate objections were filed, he had raised his oral argument
before the executing court that necessary permission under
ULC, as per the decree, was not obtained by the decree
holder. The same was rejected, as already answered while
deciding the earlier objection, and having passed an order
below Exhibit 1 in the execution petition vide its order dated
29-04-2004.
19.4 So far as the objections at Exhibit 203 and 214 are
concerned, the executing court has found that payment of the
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consideration amount is not time-barred, as the consideration
amount is fixed by the trial court, and as per the order of the
trial court, the decree holder has deposited the said
consideration in the Court on 01.7.2004. Because of the
aforesaid reasons, such objections were turned down by the
executive court.
19.5 So far as objections in relation to the non-executable
decree on the ground that the obstructor has purchased the
suit property by way of registered sale deeds is concerned, the
suit property is purchased during the pendency of execution
petition, the executing court has found that such a transaction
is hit by Section 52 of the Transfer of Property Act, and when
the obstructor has already withdrawn his objection at Exhibit
159 and objections at Exhibit 162 and 164 were already
rejected in the earlier round, the obstructor cannot retain the
possession of the suit property.
20. So far as the arguments canvassed by learned advocate
Mr. Dave regarding Section 28 of the Specific Relief Act is
concerned, it is a misconceived submission on the part of
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learned advocate Mr. Dave. As such unmindful to the
provisions of Section 28 of the Specific Relief Act, 1963, such
submission was made. To appreciate such submission, I would
like to reproduce Section 28 of the Specific Relief Act.
"28. Rescission in certain circumstances of contracts for the sale or
lease of immovable property, the specific performance of which has
been decreed.--(1) Where in any suit a decree for specific
performance of a contract for the sale or lease of immovable
property has been made and the purchaser or lessee does not,
within the period allowed by the decree or such further
period as the court may allow, pay the purchase money or
other sum which the court has ordered him to pay, the vendor or
lessor may apply in the same suit in which the decree is made, to
have the contract rescinded and on such application the court
may, by order, rescind the contract either so far as regards the
party in default or altogether, as the justice of the case may
require..........."
20.1 Learned advocate Mr. Dave in support of his said
submission has relied upon decision of P. Shyamala (supra) and
Prem Jeevan (supra), wherein Honourable Supreme Court had
an occasion to deal with such type of objections, albeit, in the
said cases, the independent application of judgement creditor
as well as judgement debtor were submitted as required under
section 28 of Specific Relief Act which was adjudicated by the
Court below including Honourable Supreme Court which is not
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the case on hand then, ratio of P. Shyamala (supra) and Prem
Jeevan (supra), would not stricto senso applied in the present
case. The relevant facts of P. Shyamala (supra) reproduced as
under:-
"2.2. After a period of 853 days from the date of judgment
and decree dated 12.10.2013 passed by the trial Court, the
original plaintiff - respondent herein filed an application be-
fore the trial Court under Section 148 of the Code of Civil
Procedure (for short, 'CPC') and Section 28 of the Specific
Relief Act being I.A. No. 732/2016 in O.S. No. 291/2013 and
prayed for extension of time to deposit the balance sale con-
sideration which the plaintiff was required to deposit on or
before 21.10.2013, as per the judgment and decree dated
12.10.2013. At this stage, it is required to be noted that af-
ter the ex-parte judgment and decree, the mother of the ap-
pellant - original defendant died on 13.01.2015 and the ap-
pellant herein being legal heir of the original defendant was
brought on record. Simultaneously, the appellant, being the
legal representative of the original defendant, filed an appli-
cation being I.A. No. 914/2017 in O.S. No. 291/2013 under
Section 28 of the Specific Relief Act, 1963 to rescind the
Agreement to Sell dated 9.5.2012....."
In Prem Jeevan (supra) also facts so observed as un-
der,
"[5] The judgment-debtor filed an application before the Ex-
ecuting Court objecting to the execution of the decree as the
amount in question was not deposited by the decree-holders
within the stipulated time, rendering the decree inexecutable
in the absence of extension of time."
(Emphasis supplied).
20.2 From the records and submissions of learned
advocate Mr. Dave, it is not made out that any such
application was filed by the judgment debtor - vendor. If it be
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so, I fail to understand how such a provision of law would be
applicable to the facts of the present case and could have been
pressed into service.
20.3 This would only show how judgement debtor is
consuming the precious judicial time in such types of matters
wherein there are no such foundational facts germane from the
record.
21. As far as the payment of balance sale consideration is
concerned, neither the original decree nor order dated
29.04.2004 passed by the Executing Court, directed the decree
holder to deposit the amount within a stipulated time as there
were certain permissions ordered to be obtained by the
judgement debtor before execution of sale deed which they had
never obtain. As such when no time limit has been fixed by
the Court in the decree which was sought to be executed, I am
of the view that Section 28 of the Specific Relief Act would
not apply. Even otherwise in absence of any application at the
instance of the judgment debtor, such objection could not have
been decided. Furthermore, decree holder within short period
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of time after allowing his Execution vide its order dated
29.04.2004 had deposited balance sale consideration on
01.07.2004 then, such argument is not available to judgement
debtor that too at the stage of execution of sale deed as this
could have been agitated at time of passing the order dated
29.04.2004 but reasons best known to judgement debtor not
raised then, in view of Barkat Ali (Supra) and Ganchi
Laxmichand Ambaram (Supra) cannot be raised.
22. The objections regarding not getting permission by the
Court commissioner of authority/collector are concerned, I am
of the view that when the decree holder is an agriculturist,
which has been clearly comes out from reading para-21 of the
original judgment passed in the aforesaid suit and the plain
reading of the original Execution Petition wherein the status of
the decree holder is shown as an agriculturist, permission was
not at all required for the execution of the sale deed.
23. Moreover, once the judgment debtor has failed to comply
with the part of the decree and not fulfilled his condition,
later on, he cannot be allowed to object to the execution of
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the sale deed on any other grounds like non-obtaining
permission, sanction, etc. Further, when objection regarding
applicability of ULC to land in question is already decided by
executing Court in first round itself, again such objection could
not have been raised by anyone. These all attempts are
nothing but to derail the execution at any cost, thereby
depriving the decree holder to get the fruits of the decree.
24. The conduct of the judgment debtor throughout the
execution proceeding would be suggesting only one fact that
by any means, the judgment debtor has tried frustrate the
decree as after having lost in objections, executed registered
sale deed, albeit, through power of attorney in favour of the
obstructor. Once the judgment debtor has executed the sale
deed in favour of the obstructor, they have no right to object
to the execution.
25. Nonetheless, having so observed earlier, the law on the
issue germane in the petition is well settled, thereby the
petition, which was filed by the judgment debtor, lacks merits.
It is filed with the suppression of material facts. The petitioner
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- judgment debtor, has not come with clean hands. Even the
learned advocate appearing for the judgment debtor has
pleaded ignorance about all these suppressions, which is
deplorable in light of the fact that the affidavit in reply filed
by the decree holder reveals all such suppressions.
26. Keeping all these factors into account and the fact and
law as discussed herein above, this Court finds that the special
civil application filed by the judgment debtor requires to be
dismissed with exemplary costs, which is quantified to Rs.
1,00,000/-to be paid by the judgement debtor within period of
four weeks from today. The petitioner - judgment debtor is
hereby directed to pay a sum of Rs. 50,000/- to the decree
holder, i.e., Respondent no.1, and the remaining Rs. 50,000/-
to be paid/deposited with the Gujarat State Legal Services
Authority, Ahmedabad, within a period of four weeks from
today. It is open for respondent No.1 as well as the Gujarat
State Legal Services Authority to recover the amount of costs
from the petitioner by way of alien recovery in accordance
with law.
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27. As far as the petition filed by the obstructor is
concerned, when the obstructor, having withdrawn his
obstruction filed below exhibit 159 and its applications at
Exhibit 162/164 were rejected in an earlier round of litigation,
later in point of time again, it cannot be allowed to raise
objections against the impugned application filed below Exhibit
184 by the decree holder. The principle of
Res-judicata/Constructive Res-Judicata would also squarely
apply to the obstructor. At the cost of repetition, the
obstructor, having consciously withdrawn his obstruction
application filed below Exhibit 159 and his other obstruction
applications filed below exhibits 162 and 164 were rejected by
the Executing Court wherein the prayer was made to the effect
that the decree holder may not be granted any relief in
relation to the execution of the sale deed for the suit property,
now cannot object such prayer when the decree holder has
filed the impugned application at Exhibit 184 requesting for
execution of the sale deed in his favour.
28. Moreover, the submissions which are so canvassed by
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learned advocate Mr. Shelat, nothing has been whispered by
the obstructor while submitting its objection applications
Exhibits 159/162/164 and objecting Exhibit 184, an impugned
application. So, it appears that for the first time, a new plea
has been raised before this Court. This is not permissible in
view of what has been held by this Court in Ganchi
Laxmichand Ambaram (Supra), I am of the view that the
objections, which are now raised by the obstructor in the
petition are barred by the principle of Constructive Res-
Judicata.
28.1 Once the objections of the judgment debtor have been
examined and dealt with by the Executing Court, and the
objections were rejected in the years 2004-2005, nothing
further remains in the execution except the execution of the
sale deed through the Court commissioner, which has been
done so by way of the impugned order.
29. So far as the filing of civil suits by the judgment debtor
and/or decree holder against the obstructor and those suits got
dismissed are concern, decree in question and execution would
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not automatically become nugatory. The right of the decree
holder to enjoy the fruits of the decree flows from the decree
itself, and after closely going through the original judgement
and decree, I would not like to depart from the recourse
adopted by the Executing Court for execution of the sale deed,
as the suit property consists of a total area of 1 acre and 5
gunthas, which is around 5059 sq.mts., for which the Court
commissioner has executed the sale deed in favour of the
decree holder in turn executed registered sale deed in favour
of the subsequent purchaser.
30. At this juncture, it is worth taking note of the decision of
the Hon'ble Supreme Court of India in the case of Silverline
Forum Private Limited (Supra), wherein, it was held as under:-
"[10] It is true that R. 99 of O. 21 is not available to any person
until he is dispossessed of immovable property by the decree-
holder. Rule 101 stipulates that all questions "arising between the
parties to a proceeding on an application under Rule 97 or Rule
99" shall be determined by the executing Court, if such questions
are "relevant to the adjudication of the application". A third party
to the decree who offers resistance would thus fall within the
ambit of Rule 101 if an adjudication is warranted as a consequence
of the resistance or obstruction made by him to the execution of
the decree. No doubt if the resistance was made by a transferee
pendente lite of the judgment-debtor, the scope of the adjudication
would be shrunk to the limited question whether he is such
transferee and on a finding in the affirmative regarding that point
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the execution Court has to hold that he has no right to resist in
view of the clear language contained in Rule 102. Exclusion of
such a transferee from raising further contentions is based on the
salutary principle adumbrated in Section 52 of the Transfer of
Property Act.
(11) When a decree-holder complains of resistance to the
execution of a decree it is incumbent on the execution Court to
adjudicate upon it. But while making adjudication, the Court is
obliged to determine only such question as may be arising between
the parties to a proceeding on such complaint and that such
questions must be relevant to the adjudication of the complaint.
(12) The words "all questions arising between the parties to a
proceeding on an application under Rule 97" would envelop only
such questions as would legally arise for determination between
those parties. In other words, the Court is not obliged to determine
a question merely because the resistor raised it. The questions
which executing Court is obliged to determine under Rule 101,
must possess two adjuncts. First is that such questions should have
legally arisen between the parties, and the second is, such
questions must be relevant for consideration and determination
between the parties, e.g. if the obstructor admits that he is a
transferee pendente lite it is not necessary to determine a question
raised by him that he was unaware of the litigation when he
purchased the property. Similarly, a third party, who questions the
validity of a transfer made by a decree-holder to an assignee,
cannot claim that the question regarding its validity should be
decided during execution proceedings. Hence, it is necessary that
the questions raised by the resistor or the obstructor must legally
arise between him and the decree-holder. In the adjudication
process envisaged in Order 21, Rule 97(2) of the Code, execution
Court can decide whether the question raised by a resistor or
obstructor legally arises between the parties. An answer to the said
question also would be the result of the adjudication contemplated
in the sub-section.
[14] It is clear that executing Court can decide whether the resistor
or obstructor is a person bound by the decree and he refuses to
vacate the property. That question also squarely falls within the
adjudicatory process contemplated in Order 21, Rule 97(2) of the
Code. The adjudication mentioned therein need not necessarily
involve a detailed enquiry or collection of evidence. Court can
make the adjudication on admitted facts or even on the averments
made by the resistor. Of course the Court can direct the parties to
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adduce evidence for such determination if the Court deems it
necessary."
(Emphasis supplied).
31. It is also profitable to rely upon the decision of Usha
Sinha (Supra), wherein in paragraph 25, it has been held as
under:-
"[25] We are in respectful agreement with the
proposition of law laid down by this Court in
Silverline Forum. In our opinion, the doctrine is
based on the principle that the person
purchasing property from the judgment debtor
during the pendency of the suit has no
independent right to property to resist, obstruct
or object execution of a decree. Resistance at
the instance of transferee of a judgment debtor
during the pendency of the proceedings cannot
be said to be resistance or obstruction by a
person in his own right and, therefore, is not
entitled to get his claim adjudicated."
(Emphasis supplied).
32. Thus, in view of the aforesaid ratio of said decisions, if
applied to the facts of the present case, there is no substance
or merit in the objections of the obstructor, who has purchased
the suit property in the midst of execution.
33. Though learned senior counsel Mr. Sanjanwala has
requested this Court to hold that the obstructor, having
withdrawn their obstruction application below exhibit 159 and
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lost in their applications filed below exhibits 162 and 164, has
no right to file any obstruction application post the impugned
order, I am of the view that no such prayer has been made in
the petition filed by the obstructor regarding such obstruction
to be decided by the Executing Court. So, I would not like to
decide such aspect of the matter, as the same is beyond the
prayer of the petition filed by the obstructor. Thus, I have not
dealt with judgements so cited by the learned advocate Mr.
Shelat appearing for the obstructor in regards to its right to
object the decree as claimed to have been filed under Order
XXI Rule 97 to 99, read with Section 47 and 151 of the Code
of Civil Procedure, 1908, which is claimed to be pending as on
date to be decided by the Executing Court.
34. Having so observed, the entire set of events and the
conduct of the obstructor, who has also played its own role in
delaying the execution of the decree and having not disclosed
the true and correct facts thereby not submitted in its petition
its earlier objection applications filed below exhibits
159/162/164 and order passed thereon, wherein the obstructor
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lost either before the Executing Court or before this Court, I
am of the view that such a petition filed by the obstructor is
also required to be dismissed with costs, which is quantified to
Rs.1,00,000/-. Such costs shall be paid by the petitioner
(obstructor) of Special Civil Application No. 19656 of 2019
within a period of four weeks from today. Out of
Rs.1,00,000/-, a sum of Rs. 25,000/- shall be paid to the
decree holder and Rs. 25,000/- to the subsequent purchaser
each and the balance Rs. 50,000/- shall be paid/deposited with
the Gujarat State Legal Services Authority, Ahmedabad, failing
which, it is open for the decree holder, the subsequent
purchaser, and the Gujarat State Legal Services Authority,
Ahmedabad to recover it from the petitioner-obstructor as an
alien recovery in accordance with the law.
35. It is pertinent to note that none of the judgments so
relied upon by the respective learned advocates appearing for
the petitioners would not be applicable to the facts of the
present case, so discussed hereinabove.
36. Thus, the executing court has passed well-reasoned order,
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dealt with all these objections raised by the judgment debtor
and obstructer respectively. As stated herein above, I am in
complete agreement with the impugned order passed by the
executing court who has not travelled beyond the decree.
CONCLUSION
37. After considering the entire set of facts, submissions of
respective parties, and after going through the judgment,
decree, earlier orders passed either by the Executing Court and
or this Court, as well as previous applications and objections
filed by the judgment debtor and obstructor, I am of the view
that there is no gross error much less any jurisdictional error
committed by the Executing Court while rejecting the
objections of the judgement debtor filed below Exhibits 203,
214, 215, 216 and 222, thereby allowed impugned application
of the decree holder filed below Exhibit 184.
38. According to this Court, Executing Court has not travelled
beyond the decree while passing the impugned order. As such
objections/plea either raised by the judgement debtor and or
obstructor are barred by principle of Res-judicata/Constructive
NEUTRAL CITATION
C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025
undefined
Res-judicata.
39. Thus, in view of aforesaid, no interference requires of
this Court while exercising its power under Article 227 of the
Constitution of India.
40. The upshot of the aforesaid discussion, observation, and
reasons, I am of the view that both these petitions either filed
by the Judgment debtor or the obstructor lack merit and
require to be dismissed, and the same is hereby dismissed with
the costs i.e. Rs.1,00,000/ each to be deposited and paid as
aforesaid. Notice discharged. The connected Civil Application is
also disposed of accordingly.
41. The registry shall send a copy of this judgment to the
Gujarat State Legal Services Authority, Ahmedabad for its
further action if so require.
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
