Gujarat High Court
Bharatsinh Rambha Vaghela vs Maganji Talaji Thakor on 3 July, 2025
NEUTRAL CITATION
C/SCA/8718/2025 ORDER DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8718 of 2025
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BHARATSINH RAMBHA VAGHELA & ORS.
Versus
MAGANJI TALAJI THAKOR & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/07/2025
ORAL ORDER
1. Heard learned advocate Mr.H.J.Karathiya for learned
advocate Mr.S.P.Majmudar for the petitioners.
2. The present application is filed under Article 227 of the
Constitution of India seeking following relief:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of
certiorari nature of appropriate or certiorari writ, a or writ in the any
other order or directionsquashing and setting aside impugned order
dated 05.05.2025 passed by the learned Principle Senior Civil
Judge, Sirohi below Exh.1 & 39 in Regular Execution No.02 of
2016;
(B) During the pendency and final disposal of the present petition
YOUR LORDSHIPS may be stay operation, and execution of
implementation the impugned order dated 05.05.2025 passed by
the learned Principle Senior Civil Judge, Sirohi below Exh.1 & 39 in
Regular Execution No.02 of 2016 and further be pleased to direct
the respondents herein to maintain status-quo qua the land in
question;
(C) Pass any such other and/or further orders that may be thought
just and proper, in the facts and circumstances of the present
case;"
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3. At the outset, it is required to be observed that
impugned order passed by Executing Court on 5 th May, 2025 in
Regular Execution Application No.2 of 2016 thereby, alleged
execution as prayed for whereby issued possession warrant and
so also directed Registrar of the Court concerned, for
registering release of mortgage deed with concerned Sub-
Registrar office.
4. The only two fold contention raised by the petitioners in
the present writ application to the effect that after dismissal of
their appeal by the Appellate Court, they have preferred
Second Appeal before this Court. which is ofcourse at the stage
of delay condonation but until its final outcome, the Executing
Court would not proceed further with execution.
5. Secondly, it has been pointed out by learned advocate
Mr.Karathiya that in earlier point of time, when Trial Court
decreed the suit in favour of respondents/ plaintiffs, as the
case may be, when the execution was filed being Execution
Application No.47 of 2012, which was rejected by Executing
Court vide its order dated 25th September, 2023 having
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observed that Regular Civil Appeal is pending before the
Appellate Court and until its final outcome, the execution
should not be proceeded in the matter.
6. So, learned advocate Mr.Karathiya would submit that
such recourse ought to have been followed by Executing Court
either to suspend the Execution until final outcome of appeal
preferred by the petitioner or to dispose it of as the Second
Appeal is pending. Having not done so, the Execution Court
committed serious error. Further, the order impugned in the
present writ application, if implemented, there would be an
irreversible situation, which would cause great hardship and
inconvenience to the petitioner.
7. Thus, in view of the aforesaid and the submissions made
by learned advocate Mr.Karathiya, requested this Court to
interfere in the matter.
8. I have gone through the record of the matter as well as
the order impugned in the present writ application passed by
Executing Court.
9. It is not in dispute that the Trial Court passed a
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judgment and decree in favor of the plaintiffs, against which, a
Regular Appeal was filed, which was not entertained by the
Appellate Court and against which, Second Appeal was then
preferred before this Court by Judgment debtor, which appears
to have been filed in the year 2023 but currently pending at
the stage of condonation of delay, as the Civil Application
seeking condonation of delay in filing such Second Appeal has
not yet been decided. The reasons of non-adjudication of delay
application are not material and are not required to be
discussed in this order.
10. Be that as it may, there is no stay granted by this Court
in the Second Appeal, whereby, the judgment and decree
passed by the Trial Court, which has been merged with the
judgment and decree passed by the Appellate Court, the
Executing Court has no other option but to execute it in
accordance with law.
11. Furthermore, in view of a recent pronouncement by the
Hon'ble Supreme Court in the Case of Periyamal (Dead)
Through Lrs and Ors vs. V.Rajamani and Anr. in the case of
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Civil Appeal Nos. 3640 -3642 of 2025, the Execution
Applications need to be adjudicated as early as possible but
within six months of their filing. Whereas, in the present case,
the Execution application appears to have been filed in the
year, 2016, which was pending all throughout till passing of
the impugned order in May ,2025.
12. The recourse, which was adopted by the Executing Court
in earlier round of litigation, when it has disposed of Regular
Execution Application No. 47 of 2012 by its order dated 25th
September, 2013, on the ground that Regular Civil Appeal was
pending before District Court concerned, it is not made clear
from the record that during the pendency of such Regular Civil
Appeal, there was a stay granted against the execution of the
judgment and decree passed by the Trial Court.
13. Be that as it may, such recourse might have been
undertaken by Executing Court when Regular Civil Appeal was
pending. Whereas, in the case on hand, the Second Appeal,
which was filed by the petitioner herein is yet to be
registered, as it was filed with delay application and unless
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and until the delay is condoned by this Court, the Second
Appeal will not be registered.
14. Thus, after examining both these contentions raised by
the learned advocate Mr. Karathiya for the petitioner, I do not
find any merit in them for the reasons stated hereinabove.
15. Thus, the upshot of the aforesaid observation, discussion,
and reasons, the present writ application lacks merits and is
required to be rejected, which is hereby REJECTED. No order
as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
