Gujarat High Court
Kamleshbhai As Heir Of Tejpalbhai ... vs Dharmshibhai Maljibhai Desai on 22 January, 2025
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C/SCA/560/2013 ORDER DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 560 of 2013
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KAMLESHBHAI AS HEIR OF TEJPALBHAI LALBHAI PARIKH
Versus
DHARMSHIBHAI MALJIBHAI DESAI & ORS.
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1
MR NISHITH P THAKKAR(2836) for the Respondent(s) No.
1,10,11,2,3,4,5,6,7,8,9
MR.BHARAT PRAJAPATI(2622) for the Respondent(s) No. 12
RULE SERVED BY DS for the Respondent(s) No. 12,13,13.1,13.2,14,15,16,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/01/2025
ORAL ORDER
1. The present petition is filed by the petitioner under
Article 227 of the Constitution of India seeking following
reliefs :-
"[A] YOUR LORDSHIP/S may be pleased to allow this writ petition,
by quashing and setting aside the impugned order dated 21 st
December 2012 and be further pleased to allow application exhibit 45
& 59 filed by the petitioner directing the executing court to continue the
execution proceedings through the petitioner applicant joint decree
holder in accordance with law.
[B] Pending hearing and final disposal of this writ petition, YOUR
LORDSHIP/S may be pleased to stay execution, operation, effect and
implementation of impugned order at Annexure -H dated 21/12/2012 in
the interest of justice.
[C] Pending hearing and final disposal of this writ petition, YOUR
LORDSHIP/S may be pleased to direct the executing court to proceed
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further with the special execution application No.15 of 2008 in
accordance with law, by staying the execution, operation and
implementation of the impugned order dated 21/12/2012 below
applications exhibits 1, 45, 59 in Execution No. 15/2008.
[D] YOUR LORDSHIP/S may be pleased to grant such other and
further relief/s, in the interest of justice."
2. So far as necessary parties will be referred as per the
original position before the trial Court.
2.1 The present petitioner is one of the plaintiff, who
appears to have filed Special Civil Suit No. 60 of 1985 before
the Civil Judge (Senior Division), Ahmedabad against the
respondent Nos.1 to 11 who are original defendants of the
said suit. The suit came to be decreed in favour of the
plaintiffs including the present petitioner by the trial Court,
thereby defendants were directed to pay Rs. 10 lakh in
favour of the plaintiffs with 12% interest from the date of
suit till realization and such amount to be paid within three
months from the date of decree i.e. on or before 29.12.1998
as the decree came to be passed on 29.09.1998. It is also
observed in the decree that as the defendant Nos. 2 to 11
have committed breach of injunction as per the provisions of
law i.e. Order 39 rule 2 A of C.P.C, defendant Nos. 2 to 11 are
sentenced to civil prison for one month. The order of costs is
also imposed as referred in the decree.
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2.2 The defendants having not complied with the aforesaid
decree, the decree holder i.e. original plaintiffs have chosen
to file an Execution Petition No. 15 of 2008 appears to have
been filed on 05.03.2010 against the defendants. The name
of the present petitioner is also mentioned as one of the
applicant in the Execution Petition. It further appears that as
the present petitioner is resident of Mumbai, the aforesaid
Execution Petition came to be filed by the petitioner's cousin
namely Pankaj, who happens to be son of Rajendralal Bhai,
happens to be one of the decree holder. It further appears
that during the pendency of the aforesaid Execution
Petition, it was felt by the present petitioner that Mr. Pankaj,
who was authorized by the decree holders to pursue the
Execution Petition was not taking interest to pursue the
Execution Petition, vide application dated 10.12.2010 filed
below Exh.45 in the aforesaid Execution Petition, the
present petitioner had preferred an independent application
whereby requested the Executing Court to permit the
applicant to appear and allow him to pursue the execution
henceforth.
2.3 The aforesaid application is submitted at Annexure-C to
the present petition, wherein it has been pointed out that no
objection has been given by Mr. Pankaj R. Parikh, through
whom Execution Petition was filed. Even it appears that no
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objection was also given by the learned advocate of
defendants- opponents. The aforesaid application remain
undecided until the impugned order has been passed.
2.4 It further appears that another application below Exh. 42
has been filed in the aforesaid Execution by Mr. Pankaj R.
Parikh through whom the execution came to be filed
wherein it has been so stated that costs of Rs. 5,000/- is
deposited through cheque No. 830141 which was issued by
the present petitioner and get it cleared on 17.12.1998
thereby it was requested to the Executing Court to send the
defendants to civil prison as per the decree. This application
was also remain undecided.
2.5 Thereafter, on 22.09.2012 impugned withdrawal pursis
below Exh.56 was filed by Mr. Pankaj R. Parikh to permit him
to withdraw aforesaid Execution Petition, which was strongly
objected by the present petitioner by filing his detailed reply
below Exh. 59 on 29.09.2012. The aforesaid withdrawal
pursis came to be filed by Mr. Pankaj R. Parikh on the ground
that he has received the money under the decree and
necessary declaration and the receipt of amount is also
submitted with such withdrawal pursis.
2.6 After hearing the parties and considering the
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objections, the Executing Court vide its impugned order
dated 21.12.2012 has permitted withdrawal of Execution
Petition and rejected the both the application below Exh. 45
and 59 by common impugned judgment and order.
2.7 Thus, in view of the aforesaid judgment and order, the
petitioner has challenged such common judgment and order
passed by the Executing Court, thereby rejected his
application and objection filed below Exh. 45 and 59
respectively and disposed of the Execution Petition as
withdrawn.
3. At the relevant point of time, while admitting the
matter, the Co-ordinate Bench of this Court vide its order
dated 26.11.22015, passed the following order, which reads
as under :-
"It appears that the Executing Court has not followed the
provisions contained in Order 21 Rule 15 of the Code of Civil
Procedure, 1908 and has also not followed the provisions contained in
section 47 of the Code while dealing with the application filed by the
present petitioner below Exh.45 and thus, permitted the respondent
No.12 to withdraw the execution petition as per application filed below
Exh.55/56.
Though the matter was called out twice during the course of the
day, learned advocates for the respondents did not turn up nor any
request was made to adjourn the matter.
In light of this position, present petition deserves consideration.
Therefore, issue Rule returnable on 16.12.2015. Relief in terms of para
14(B) is granted till then.
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Direct service is permitted."
So, the stay which was granted against the impugned
order is still operating as on date.
Submission of the learned advocate for the petitioner
4. Learned advocate Mr. K.V. Shelat for the petitioner
submits that the impugned order passed by the Executing
Court in exceeding its jurisdiction so vested in it and requires
to be interfered by this Court.
4.1. Learned advocate Mr. Shelat submits that impugned
order is passed dehors the provisions of Code of Civil
Procedure, more particularly Order XXI rule 15 read with
Section 47 of Code of Civil Procedure, 1908.
4.3 Learned advocate Mr. Shelat would further submit that
it is remain undisputed fact that present petitioner is one of
the decree holder and decree which is passed in favour of
the plaintiff was a joint decree, never questioned by the
judgement debtor i.e. respondent Nos. 1 to 11 herein before
any Appellate Court then he could not have been deprived
from its fruits.
4.4 Learned advocate Mr. Shelat would further submit that
when the defendants have not complied with the decree, all
the decree holders through one Mr. Pankaj R. Parikh, who
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happens to be close relative of the petitioner has filed the
Execution Petition in question then petitioner being one of
applicant of execution so filed could not deprived to pursue
such execution.
4.5 Learned advocate Mr. Shelat further submit that when it
was felt by the petitioner that smelling something
inappropriate on the part of Mr. Pankaj R. Parikh, who is
joined as respondent No. 12 in the present petition, an
appropriate application came to be filed by the petitioner
below Exh. 45 thereby sought permission of Executing Court
to permit the petitioner to pursue the execution with his
signature being a decree holder then it would be erroneously
rejected by executing court on the issue of limitation.
4.6 Learned advocate Mr. Shelat would submits that when
there was no objection issued by the respondent No.12 i.e.
Mr. Pankaj R. Parikh and also by other advocate concerned of
the defendants and such application was fixed for hearing at
the relevant point of time in the year 2010, the Executing
Court was required to first decide such application and
committed a gross error in law by passing common judgment
and order decided all the application vide its impugned
order.
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4.7 Learned advocate Mr. Shelat would further submit that
reading Order 22 rule 15 sub rule-2, it was the duty cast upon
the Court to protect the interest of the party being the
decree holder, who is not joined formally in the execution.
4.8 Learned advocate Mr. Shelat states that when there is
serious objection raised by the decree holder about non
satisfaction of the decree by the defendants as well as
having already deposited the costs of Rs. 5,000/-, thereby
defendant Nos. 2 to 11 ought to have sent to civil prison
having breach the Court's order. It was the duty upon the
Court to honour its own decree, whereby defendants could
not have been let go without sending to the civil prison
especially when the amount of costs is already deposited.
4.9 Learned advocate Mr. Shelat would submits that
Executing Court was required to first decide application of
the petitioner filed below Exh.45, thereafter it could have
proceeded further and requires to decide the claim of
respective parties in accordance with law considering Section
47 of Code of Civil Procedure, 1908.
4.10 According to Learned advocate Mr. Shelat, the
recourse, which was adopted by the Executing Court was not
at all in consonance with the object and purpose and drafted
under Order 21 of the Code of Civil Procedure, 1908. As
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according to him, the Court is supposed to consider the
serious objections of one of the decree holder in a case
where there is no subjective satisfaction of the decree
holder in relation to the money decree.
4.11 Lastly, Learned advocate Mr. Shelat would submits
that in any case, when there is order to send the defendant
Nos. 2 to 11 to civil prison due to breach of injunction order
passed by the Civil Court, then at least the Court ought to
have considered such aspect of the matter before passing
any final order below Exh.1.
4.4 Making the aforesaid submission, he would request this
Court to allow the present petition, thereby requesting this
Court to allow the application filed below Exh. 45 and
thereafter decide the Execution Petition in accordance with
law and requesting this Court to quash and set aside the
impugned judgment and order passed by the Executing
Court.
Submission of the learned advocate for respondent.
5. Per contra, learned advocate Mr. Nishith P. Thakkar for
the original defendants- judgment debtor has vehemently
opposed the present petition by contending inter-alia that
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once the judgement debtors have paid the amount to Mr.
Pankaj R. Parikh, then nothing remains in the execution and
the Executing Court has not committed any error in passing
the impugned order.
5.1 Learned advocate Mr. Thakkar would request this Court
not to entertain the present petition while exercising its
powers under Article 227 of the Constitution of India, as
there is no jurisdictional error or any gross error committed
by the Executing Court while decided the impugned
applications by way of common judgment and order.
5.2 Nonetheless, Learned advocate Mr. Thakkar candidly
states that when the impugned application filed by the
petitioner below Exh.45 wherein the endorsement of no
objection has been given by respondent i.e. Mr. Pankaj R.
Parikh as well as learned advocate for the defendants and
the same was fixed for hearing in the year 2010 itself, then it
ought to have been decided first.
5.3 So, Learned advocate Mr. Thakkar would request this
Court that if the Court is inclined to quash and set aside the
impugned order, thereby allowing application filed by the
petitioner below Exh. 45 and restoring the Execution
Petition No. 15 of 2008 on its file, an opportunity may be
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given to the judgement debtors to defend such Execution
Petition in accordance with law, as according to the
judgment debtors, they have already satisfied the decree.
6. Learned advocate Mr. Bharat Prajapati for respondent
No. 12 has not remained present. It appears that on
13.06.2023 also he was absent, thereby last opportunity was
granted by this Court in the year 2023 but today, also he is
not remain present.
7. Heard learned advocates for the respective parties,
who are present. No other and further submissions except
recorded herein above have been made by the learned
advocate for the respondent.
Points of determination
(i) Whether in the facts and circumstances of the case,
when one of the decree holder was applicant of Execution
Petition No. 15 of 2008 could have been allowed to pursue
the Execution Petition, in a place of a person, who is not a
decree holder but given an authority to pursue the
execution?
(ii) Whether in the facts and circumstances of the case, the
Executing Court could have decided all the applications
together including the application for withdrawal of
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execution filed at the instance of the person, who is not
decree holder?
8. After going through the relevant documents and order
which are available with the present petition and reply filed
by the original judgment debtor, prima-facie, it appears that
the petitioner is one of the joint decree holder and also
applicant of Execution Petition No. 15 of 2008 filed suit by
the respondent No.2 herein i.e. Mr. Pankaj R. Parikh.
8.1 It further appears that during the pendency of such
Execution Petition, when the decree holder himself has
preferred an application below Exh. 45 on 10.12.2010,
wherein no objection has been given by Mr. Pankaj R. Parikh
as well as learned advocate for the defendants, thereby the
prayer made in the application by the petitioner ought to
have been considered first by the Executing Court when it
has already fixed the application for hearing.
8.2 if such application is going to be preferred by the decree
holder with a prayer to the Executing Court that as the
consent given by the present petitioner, Execution Petition
is filed by Mr. Pankaj R. Parikh but in view of change of
circumstances, let the petitioner be allowed to remain
present and singed the further proceedings of the execution
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petition in question thereby he can pursue the execution.
8.3 According to this Court, if such application is not
objected by any of them, and if it could have been allowed at
the relevant point of time, then Mr. Pankaj R. Parikh could
not have been in a position to file such a withdrawal pursis at
Exh. 56, impugned in the present petition. Furthermore,
when one of decree-holder objected such withdrawal having
not received money then it was bounden duty of the
executing court to ascertain as to whether decree has been
satisfied i.e. decree holders have received money from
judgement debtor. It appears that no such exercised/inquiry
has been undertaken by executing court before passing
impugned order.
8.4 At this stage, it is apposite to refer and rely the
following provisions of C.P.C. i.e Order XXI rule 15 of Section
47 of Code of Civil Procedure, 1908, which reads as under :-
"ORDER XXI Rule 15. Application for execution by Joint
decree-holders.--(1) Where a decree has been passed jointly in
favour of more persons than one, any one or more of such
persons may, unless the decree imposes any condition to the
contrary, apply for the execution of the whole decree for the
benefit of them all, or, where any of them has died, for the benefit
of the survivors and the legal representatives of the deceased.
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(2) Where the Court sees sufficient cause for allowing the
decree to be executed on an application made under this rule, it
shall make such order as it deems necessary for protecting the
interest of the persons who have not joined in the application."
8.5 It is apt to refer to and rely upon the decision of
Honourable Gauhati High Court, in a case of Bipul Behari Nag
V/s Md. Mehboob Hussian & Ors. Reported in 1993 SCC
Online Gau 71: (1993) 1 Gau LR 336 Authored by Honourable
Mr. Justice S.N. Phukan, (His Lordship then was), which held
as under,
"7. Rule 15 of Order 21 C.P.C. provides for application for execution by
joint Decree-Holders. This rule, inter alia, provides that where a decree has
been passed jointly in favour of more persons than one, any one or more such
persons may, unless the decree imposes any condition to the contrary, apply
for the execution of the whole decree for the benefit of them all, or, where any
of them has died, for the benefit of the survivors and the legal representatives
of the deceased. Sub-rule (2) provides that where the court finds sufficient
cause for allowing the decree to be executed on an application made under
this rule, it shall make such order as it: deems necessary for protecting the
interests of the persons who have not joined in the application.
8. The object of this rule is clear. The provision has been made in this rule
to enable a single decree-holder to file a petition for execution ??? case of
joint decree so that other decree-holders by not joining the petition for
execution, cannot frustrate the decree. But at the same time to
safeguard the interest of the decree-holders, who have not joined, it has
been provided that court shall make an order for protecting their
interest. This protection has been given to the other decree-holders who are
not parties to the execution proceeding so that one decree-holder may not
enjoy alone the fruit of the decree by getting the decree executed. A duty has
been imposed by this rule on the court to safeguard the interest of such
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decree-holder's who are not parties to the execution proceeding. Even if
such decree-holders are not made parties court has to suo-moto pass
necessary orders for protection of their interest."
Emphasise supplied.
8.6 Considering the aforesaid facts and circumstances of
the case and after going through the aforesaid provisions
including Section 47 of Code of Civil Procedure, 1908, I am of
the view that the recourse adopted by the Executing Court is
exceeding its jurisdiction so vested in it, being erroneous and
contrary to the settled provisions of law whereby committed
jurisdictional error while rejecting the application filed by
the petitioner below Exh. 45.
8.7 So, Executing Court, in the facts of this case has wrongly
permitted the respondent No. 12 i.e. Mr. Pankaj R. Parikh to
withdraw the Execution Petition filed below Exh. 1. The
recourse which was required to have been adopted by the
Executing Court was to first decide an application filed by
one of the decree holder i.e. present petitioner below Exh.
45 and after that allowing him to pursue his own Execution
Petition at the instance of respondent No.12. It is also needs
to be recorded here that petitioner's application Ex.45 was in
regards to permit him to pursue his own execution albeit,
jointly filed which could not have been rejected. There is
fallacy on the part of executing court to treat such
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application as a joining party application or to be impleaded
after period of limitation gets over to file execution. Such an
erroneous approach on the part of executing court resulted
into miscarriage of justice. Any decision which requires to
be taken by the trial Court, could have been taken after
giving an opportunity of hearing to all the parties.
8.8 At this stage, it is not out of place to mention that the
defendant Nos. 2 to 11 are facing the decree thereby they
are ordered to send to civil prison. As referred herein above,
Cost of Rs. 5,000/ has been deposited by petitioner through
issuance of his Cheque which is already realized in favour of
the Court concerned. If it be so, at least executing court
required to have keep that factor into account while
adjudicating impugned applications/objections. I am of the
view that Executing Court was required to give respect to
the decree passed by competent Court, thereby a defaulting
defendants requires to have been sent to civil prison,
whereby majesty of the order the trial Court concerned
which is breached by the defendant Nos. 2 to 11 could have
been respected and preserved. Having not done so, and in
haste, the Executing Court has disposed of the Exexcution
Petition by permitting the respondent No.12, who
admittedly not a decree holder to withdraw such petition,
thereby committed a gross error in law.
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9. The upshot of the aforesaid discussion, reasons and
findings so recorded hereinabove, I am of the view that the
impugned order requires to be quashed and set aside, which
is hereby quashed and set aside.
CONCLUSION.
10. I am of the view that one of the decree holder was
applicant of Execution Petition No. 15 of 2008 could have
been allowed to pursue the Execution Petition, in a place of
a person, who is not a decree holder.
10.1 In view of the above, application of the petitioner filed
below Exh. 45 in Execution Petition No. 15 of 2008 is hereby
allowed.
11. Considering peculiar facts and circumstances of the
present case, Executing Court could not have decided all the
applications together including the application for
withdrawal of execution filed at the instance of the person
who is not decree holder.
12. Consequently, having quashed and set aside the
impugned common judgment and order, the Execution
Petition No. 15 of 2008 is restored back on its file, whereby
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the present petitioner being one of the decree holder is
permitted to pursue his application filed in Execution
Petition No. 15 of 2008 in accordance with law as prayed in
Ex.45.
12.1 At the same time, the defendants are also entitled to
raise any objections in regard to the satisfaction of decree
impugned in the Execution Petition and it is open for them
to submit necessary proof of payment to the decree-holder
and or their representative.
12.2 All such objections which will be raised by the
respective parties before the Executing Court, Such
objections will requires to be adjudicated by the Executing
Court in accordance with law. As such power is available to
the Executing Court as provided under Section 47 of Code of
Civil Procedure, 1908 for adjudication of such objections.
13. It goes without saying that this Court has neither gone
into the merits of the matter nor the claim regarding
satisfaction of the decree and or payment received by the
decree holders if any or not. This issue is left open and to be
decided by the Executing Court as per the evidence coming
forth in the Executing Petition and the same shall be
considered by the Executing Court in accordance with law.
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14. It is expected from the Executing Court that
considering the year of execution i.e. 2008, with the co-
operation of the parties, all the objections which may be
raised by the respective parties, may be adjudicated and
decided by the Executing Court as early as possible
preferably within a period of nine months from the date of
receipt of this order including further steps to be
undertaken by executing court to decide recourse of sending
defendant no. 2 to 11 into civil prison.
15. Thus, in view of the aforesaid, the present petition
requires to be partly allowed. Rule is made absolute to the
aforesaid extent. No order as to costs.
Direct service is permitted.
(MAULIK J.SHELAT,J)
SALIM/
