Maganbhai Bhaga @ Bhagubhai Patel vs Ishwarbhai Bhaga @ Bhagubhai Patel
2025 Latest Caselaw 671 Guj

Gujarat High Court

Maganbhai Bhaga @ Bhagubhai Patel vs Ishwarbhai Bhaga @ Bhagubhai Patel on 8 July, 2025

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                           C/SCA/19366/2015                                      ORDER DATED: 08/07/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                   R/SPECIAL CIVIL APPLICATION NO. 19366 of 2015

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                                      MAGANBHAI BHAGA @ BHAGUBHAI PATEL
                                                     Versus
                                   ISHWARBHAI BHAGA @ BHAGUBHAI PATEL & ORS.
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                     Appearance:
                     MR ZUBIN F BHARDA(159) for the Petitioner(s) No. 1
                     MRS NASRIN N SHAIKH(2451) for the Respondent(s) No. 1,2,4
                     REFUSED SERVED (N)(10) for the Respondent(s) No. 3
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                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 08/07/2025

                                                         ORAL ORDER

1. Rule returnable forthwith. Learned Advocate Mrs. Nasrin N.

Shaikh waives service of notice of rule for the respondents.

With the consent of parties, the matter is taken up for final

hearing

2. Heard learned Advocate Mr. Zubin F. Bharda for the

petitioner and learned Advocate Mrs. Nasrin N. Shaikh for

the respondent Nos.1, 2 and 4.

3. The present writ application is filed under Article 227 of the

Constitution of India, seeking the following reliefs:

"A.That this Hon'ble Court may be pleased to admit this petition.

B. That this Hon'ble Court may be pleased to quash and set aside the judgment and order dated 10.08.2015 passed by the Principal Senior

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Civil Judge, Gandevi rejecting Exh. 111 in Special Execution Petition No.08/2005 filed by the petitioner and in turn allow the application Exh.111 and direct preparation of a Map depicting a 15 feet broad road in agricultural land bearing Block Nos. 4, 20 and 64 situated in village-Khergam, Taluka-Gandevi, District-Navsari as decreed by the Hon'ble Court as well as prepare a Map indicating the share of land that has come in possession of each of the parties as per the decree and thereafter, get the same recorded in the revenue records maintained by the Revenue Authority, in the interest of justice.

C. Pending admission and/or final disposal of the petition, this Hon'ble Court be pleased to stay the further proceedings of Special Execution Petition No.08/2005 pending in the Court of the Principal Senior Civil Judge, Gandevi, till this petition is finally heard and decided by this Hon'ble Court, in the interest of justice.

D. That this Hon'ble Court be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.

E. That this Hon'ble Court be pleased to award cost of the petition from the respondents."

4. At the outset, learned Advocate Mr. Bhadra would submit

that despite there is an objection filed by the petitioner at

Exh.62 and other beneficiary of consent decree at Exh.63, in

the execution proceedings being Special Execution

Application No. 8 of 2005 which was filed in the year 2009,

after the submission of Map by the DILR, there was no

adjudication upon such objections and as such, it was

erroneously observed in the impugned order that no such

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objections were filed by any of the parties against submission

of Map of DILR.

5. Learned Advocate Mr. Bhadra would further submit that as

there was none consideration of written objections raised by

the petitioner at Exh.62 and other person at Exh.63 by the

Executing Court, there was a need arise to filed an impugned

application below Exh.111 requesting the Executing Court to

prepare a fresh Map as per the decree and to pass further

order.

6. Learned Advocate Mr. Bhadra would submit that without

taking note of the previous objections on record, the

Executing Court has erroneously rejected the impugned

application solely on the ground that such application is filed

again with the same relief for preparation of Map through the

DILR, which is erroneous and perverse observations and

reasons on the part of the Executing Court, which requires to

be interfered with by this Court while exercising its power

under Article 227 of the Constitution of India.

7. Per contra, learned Advocate Mrs. Shaikh would submit that

as such, there is no erroneous observation made on the part

of the Executing Court while rejecting the impugned

application, inasmuch as the relief which has been sought in

the impugned application was already granted by the

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Executing Court at given point of time, as undisputedly, the

DILR was appointed, who has submitted the Map, wherein

consent is also given by the petitioner.

8. So, learned Advocate Mrs. Shaikh would request this Court

not to interfere with the order passed by the Executing

Court.

9. Heard the learned Advocates appearing for the respective

parties at length.

10. After going through the impugned order, prima facie, it

appears that the Executing Court has rejected the impugned

application solely on the ground that after the submission of

the Map prepared by the DILR, as per the order passed

below Exh.48, there was no objection raised by any of the

parties to the execution proceedings. This observation is

factually incorrect as there was a written detailed objection

submitted by petitioner after submissions of Map prepared

by DILR, which was found at Exh.62 in the execution

proceedings and so also, another party to the execution

proceedings has also submitted his written objections below

Exh.63 in the execution proceedings. This fact is unable to be

controverted by the learned Advocate Mrs. Shaikh during the

course of her arguments.

11. It appears that after the submission of the Map prepared by

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the DILR, there are certain objections/grievance raised by

the petitioner and other parties to the execution which was

never addressed upon by the Executing Court and it further

appears that only an order that is recorded is passed on such

application, which according to this Court is not just and

proper in light of the fact that after receipt of the Map

prepared by the DILR and any report thereon, it was

incumbent upon the Executing Court to decide any

grievance/objection of any of the parties to the execution,

thereby, ultimately it can effectively execute the decree.

12. When there is an apparent error on the face of the record

committed by the Trial Court, inasmuch as despite there is

written objections submitted by the petitioner at Exh.62 and

another party to the execution at Exh.63 in the execution

itself, the observations and reasons assigned by the Trial

Court while rejecting the impugned application is erroneous

and perverse and requires interference by this Court while

exercising its power under Article 227 of the Constitution of

India. [See: Waryam Singh and another V/s. Amarnath

and another reported in (1954) AIR (SC) 215].

13. In light of the aforesaid, the impugned order requires to be

quashed and set-aside, which is hereby quashed and set

aside. I pass the following order:

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(a) The impugned order dated 10th August 2015, passed by the

Principal Senior Civil Judge, Gandevi below Exh.111 in

Special Execution Application No. 8 of 2005, is hereby

quashed and set aside. The impugned application filed below

Exh.111 in the Special Execution Application No. 8 of 2005 is

restored back on its file.

(b) The Executing Court is directed to decide the impugned

application at Exh.111 along with the written objections filed

by the petitioner and the other party to the execution petition

at Exh.62 and 63, respectively, as early as possible but in

accordance with law.

14. It is further made clear that this Court has neither gone into

nor examined the merits of the impugned application and/or

the objections submitted by the petitioner and/or any other

party, which shall be decided by the Executing Court after

affording an opportunity of hearing to all parties concerned

in accordance with law. Rule is made absolute to the

aforesaid extent. No order as to costs. Direct service is

permitted.

(MAULIK J.SHELAT,J) Nilesh