Gujarat High Court
Harijan Prahladbhai Kasturbhai vs D.B.Barot, Bailiff/ Court Receiver on 30 June, 2025
NEUTRAL CITATION
C/SCA/8502/2025 ORDER DATED: 30/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8502 of 2025
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HARIJAN PRAHLADBHAI KASTURBHAI & ORS.
Versus
D.B.BAROT, BAILIFF/ COURT RECEIVER & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 30/06/2025
ORAL ORDER
1. At the outset, learned advocate Mr. S.P. Majmudar for
the petitioners submit proposed draft amendment seeking
amendment in the prayer clause in para-22(A).
2. Permission as sought for, is granted. Amendment be
carried out forthwith.
3. Heard learned advocate Mr. S.P. Majmudar for the
petitioners.
4. The present writ application is filed under Article 227 of
the Constitution of India seeking following reliefs :-
"22 (A) YOUR LORDSHIPS may be pleased to issue a writ of
Certiorari and or any other appropriate writ, order or directions
NEUTRAL CITATION
C/SCA/8502/2025 ORDER DATED: 30/06/2025
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quashing and setting aside the possession warrants dated 17.04.2025
issued by the Ld. Principal Civil Judge, Dhanera in Execution
Application Regular No. 1 of 2023 (ANNEXURE F to the present
petition) as well as the order dated 30.04.2025 passed by Ld. Principal
Civil Judge, Dhanera in Execution Application Regular No. 1 of 2023
(ANNEXURE L to the present petition), to the extent that by virtue of
the same the possession of the land of the petitioners being Revenue
Survey no. 1344 has been taken over and YOUR LORDSHIPS, further
be pleased to issue appropriate directions, directing the restoration of
the possession of the land bearing Revenue Survey no. 1344 of the
petitioner back to them in the interest of justice;
(B) During the pendency and final disposal of the present petition,
YOUR LORDSHIPS may be pleased to stay the operation, execution
and possession implementation warrants dated of the 17.04.2025
issued by the Ld. Principal Civil Judge, Dhanera in Execution
Application Regular No. 1 of 2023 (ANNEXURE F to the present
petition) well as the as order dated 30.04.2025 passed by Ld. Principal
Civil Judge, Dhanera in Execution Application Regular No. 1 of 2023
(ANNEXURE L to the present petition), in the interest of justice;
(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."
5. Learned advocate Mr. Majmudar would submit that
under the garb of execution, property belongs to the
petitioners is taken over by the judgment creditor/ decree
holder and in fact property of the petitioners was not the
subject matter of suit and or decree passed by the
competent Court. Without verifying such fact and not
ascertaining the actual land in question which was subject
matter of execution which to be confirmed by the DILR, the
Executing Court has in haste disposed of execution.
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C/SCA/8502/2025 ORDER DATED: 30/06/2025
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5.1 Learned advocate Mr. Majmudar would further states
that at the time of taking over the possession of property
belongs to the petitioners they were out of station and
enable to submit their resistance / objection, otherwise, such
issue could have been decided by the Executing Court having
empower to decide it under Order 21 rule 99 of CPC.
6. Prima-facie, after appreciating the submissions made
by the learned advocate for the petitioner and after going
through the various documents including the order passed
by the Executing Court, according to my view, an alternative
remedy is available with the petitioners under Order 21 rule
99 of CPC, thereby, they can approach the Executing Court
itself by complaining about his wrongful dispossession by
the decree holder under the guise of execution. The
question which are disputed one can not be gone into by this
Court under Article 227 of the Constitution of India.
7. In any case, the petitioners are first require to approach
the Executing Court ventilating their grievance about their
wrongful dispossession as alleged.
8. At this stage, under the instruction of his client, learned
advocate Mr. Majmudar does not invite further reasons from
this Court and does not press the present writ application
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C/SCA/8502/2025 ORDER DATED: 30/06/2025
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with a view to approach the Executing Court by filing an
appropriate application.
9. Permission as sought for, is granted. It is open for the
petitioners to prefer an appropriate application under Order
21 rule 99 of CPC and or any other application which is
permissible in law making out their grievance before the
Executing Court.
10. Once, such application will be filed by the petitioners
herein before the Executing Court concerned, after giving
opportunity of hearing to all the parties concerned, the
Executing Court is hereby directed to decide such application
in accordance with law as expeditiously as possible. It is
made clear that this Court has neither gone into nor
examined the merits of the matter and claim of the
petitioner, which will have to be decided by the Executing
Court in appropriate proceedings which may be instituted by
the petitioners.
11. With the aforesaid observation and direction, the
present writ application is disposed of as withdrawn with the
aforesaid liberty. No order as to costs.
(MAULIK J.SHELAT,J)
SALIM/
