Gujarat High Court
Chitrang Jayeshbhai Shah vs Geetaben Mahendrabhai Shah on 7 May, 2025
NEUTRAL CITATION
C/SCA/6402/2025 ORDER DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6402 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6402 of 2025
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CHITRANG JAYESHBHAI SHAH
Versus
GEETABEN MAHENDRABHAI SHAH & ANR.
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Appearance:
MR SR YADAV(2395) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/05/2025
ORAL ORDER
1. Heard Learned Advocate Mr. S. Yadav appears for the
petitioner - original defendant.
2. The present writ application is filed under Article 227 of the
Constitution of India seeking the following reliefs:
"(6) a) Kindly admit this Special Civil Application.
b) Kindly call for the record and proceedings of
Execution Application No.73/2024 pending before the
Hon'ble City Civil Court No.14, Ahmedabad.
c) Kindly quash and set aside order dated 27/03/2025
passed by learned City Civil Judge, Ahmedabad city
rejecting the objection and application for stay
Exhibit No.14, 16, 20 and 23.
d) Pass any other order(s) your lordships deem fit to
pass."
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2.1 The parties are referred to as per their original position
before the trial Court.
3. The respondents herein are the original plaintiffs, who
instituted a Regular Civil Suit No.31 of 2020 against the
present petitioner - defendant seeking vacant possession of the
suit property and also mense profits.
3.1 It appears that the petitioner chosen not to appear before
the trial court. Consequently, the suit proceeded ex parte and,
vide judgment and decree dated 12th July 2022, the trial court
partly allowed the suit in favour of the plaintiff. As per the
aforesaid judgment and decree, the defendant was directed to
vacate the suit property within 30 days, hand over peaceful
possession to the plaintiff, and pay mense profit.
3.2 It further appears that the defendant has filed an
application under Order 9 Rule 13 of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'the CPC') before
the trial court and so also preferred a regular appeal
challenging the very same judgment and decree before the
appellate court, both are pending for its adjudication in
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respective courts.
3.3 In the meantime, the plaintiffs have filed an execution
application seeking possession and mesne profit. The
defendant-judgment debtor submitted objections and sought
adjournments for stay of execution proceedings, as intending to
approach a higher court.
3.4 Initially, the execution court granted some indulgence by
staying the execution proceedings. However, when no
favourable order was secured, the execution proceedings
resumed, and the executing court decided the objections vide
its order dated 27th March 2025. This order is under challenge
by way of the present petition.
4. Learned counsel Mr. Yadav for the petitioner would submit
that the executing court could not have rejected the objections
raised by the petitioner as the appeal filed by the judgment
debtor is pending adjudication and so also the application
under Order 9 Rule 13 of the CPC pending before the trial
court.
4.1 Learned counsel Mr. Yadav would further submit that the
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C/SCA/6402/2025 ORDER DATED: 07/05/2025
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executing court had the power to stay proceedings and the
discretion available to it was not correctly exercised in favour
of the judgment debtor, resulting in miscarriage of justice.
4.2 Learned counsel Mr. Yadav would submit that, by turning
down the objections, a warrant order was issued against the
petitioner, which would create hardship and inconvenience in
the event his appeal or application under Order 9 Rule 13 of
the CPC is ultimately allowed.
4.3 No other and further submissions being made by learned
advocate Mr. Yadav.
5. Having considered the submissions, it is observed that the
petitioner-defendant-judgment debtor did not remain present
before the trial court, resulting in passing of a decree of
eviction as well as order of mesne profit. Such judgment and
decree was passed on 12th July 2022, which has not been
stayed by the appellate court, executing court has no other
option but to proceed with execution. In fact, the appeal itself
was filed with a delay application, which is still pending
adjudication. Nonetheless, executing court was kind to
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C/SCA/6402/2025 ORDER DATED: 07/05/2025
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judgement debtor thereby, it had stayed execution for some
time but it can stayed it for long. Now, it is well settled law
that executing court is required to execute decree at earliest
and if possible within six months. (See 2025 SCC OnLine SC
507 in a case of Periyammal (Dead) through LRS V/s
Rajamani)
5.1 Be that as it may, when the judgment debtor having failed
to secure any stay order from the appellate court left no
option with the executing court but to reject the objections as
no substantial case was made out by the petitioner in his
objections. It is well settled that the executing court cannot go
beyond the decree.
5.2 In light of the aforesaid facts and circumstances, I do not
find any substance in the arguments canvassed by learned
counsel Mr. Yadav for the petitioner.
5.3 Having found no merit in the present writ application, this
Court would not like to interfere with the impugned order
while exercising its power under Article 227 of the Constitution
of India, wherein the scope of interference is otherwise very
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limited. [See Sameer Suresh Gupta TR PA Holder vs. Rahul
Kumar Agarwal, reported in 2013 (9) SCC 374 (Para 6 and
7) and Garment Craft v. Prakash Chand Goel, reported
in (2022) 4 SCC 181 (Para 15 and 16)].
5.4 Accordingly, the present writ application stands rejected.
There shall be no order as to costs.
6. In view of disposal of the main writ application, the
connected civil application also does not survive and stands
disposed of accordingly.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
