Gujarat High Court
Heirs Of Deceased Mahendrabhai ... vs Prashantbhai Kantibhai Patel on 4 November, 2025
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C/SCA/7104/2016 JUDGMENT DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7104 of 2016
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 7104 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HEIRS OF DECEASED MAHENDRABHAI LALLUBHAI PATEL & ORS.
Versus
PRASHANTBHAI KANTIBHAI PATEL
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Appearance:
MR MOHMEDSAIF HAKIM(5394) for the Petitioner(s) No. 1,1.1,1.2,1.3
SANKUL K KABRA(9304) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/11/2025
ORAL JUDGMENT
1. This Court vide its order dated 22nd September 2025, passed
the following order:
"Heard learned Advocate Mr. Himanshu Desai for learned
Advocate Mr.Sankul K. Kabara appearing for the respondent would
submit that there is an urgency on the part of applicant as stay is
operating against them since long.
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Today, learned Advocate, Mr.Mohmedsaif Hakim appearing
for petitioner is on sick note up to 22.09.2025.
Stand over to 30.09.2025. On next date of hearing, it is
open to seek for priority irrespective of sick note of learned
Advocate for the petitioner and the matter will be taken up for
hearing."
2. Thereafter, also on 14th October 2025, this Court passed the
following order:
"1. Learned Advocate Mr. Sankul K. Kabra for the respondent is
present, having sought priority in the matter, but none present for
the petitioners.
2. As a last chance, S.O. to 4th November 2025.
3. It is made clear that on the next date of hearing, irrespective
of any sick note/leave note of learned Advocate for the petitioners,
this Court will proceed with the matter.
4. It is open for the respondent to seek priority on the next date
of hearing."
3. Today, when the matter taken up by this Court, as priority
sought by respondent, it is reported that the learned Advocate
for the petitioners is on a sick note. When, in past, this Court
has sufficiently accommodated the learned Advocate appearing
for the petitioners and categorically observed in its last order
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dated 14th October 2025 that on the next date of hearing,
irrespective of any sick note or leave note of the learned
Advocate for the petitioners, this Court will proceed with the
matter. Hence, this Court has no option left but to decide the
matter in the absence of the learned Advocate for the
petitioners.
4. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) THIS HON'BLE COURT MAY BE PLEASED TO quash and
set-aside the impugned Order dated 19-03-2016 passed
below Exh. 287 in Regular Civil Suit No. 90 of 2011 (Original
Special Civil Suit No. 445 of 1997) passed by the Hon'ble Trial
Court i.e. Principal Civil Judge and Judicial Magistrate, First
Class, Vaghodiya;
(B) THE HON'BLE COURT MAY BE PLEASED TO allow the
application Exh. 287 in Regular Civil Suit No. 90 of 2011
(Original Special Civil Suit No. 445 of 1997);
(C) Pending admission, hearing and till final disposal of the
present Petition, THIS HON'BLE COURT MAY BE PLEASED TO
stay execution, implementation and operation of the
impugned Order dated 19-03-2016 passed below Exh. 287 in
Regular Civil Suit No. 90 of 2011 (Original Special Civil Suit
No. 445 of 1997) passed by the Hon'ble Trial Court i.e.
Principal Civil Judge and Judicial Magistrate, First Class,
Vaghodiya;
(D) Pending admission, hearing and till final disposal of the
present Petition, THIS HON'BLE COURT MAY BE PLEASED TO
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stay Proceedings of Execution Petition i.e. Regular Darkhast
No. 22 of 2015 pending before the Hon'ble Court of Principal
Civil Judge, Vaghodiya;
(E) THIS HON'BLE COURT MAY BE PLEASED TO award the
costs of the present Petition;
(F) THIS HON'BLE COURT MAY BE PLEASED TO grant such
other and further relief/s as may be deemed fit, just and
proper in the facts and circumstances of the case, in the
interest of justice and equity."
5. Heard learned Advocate Mr. Himanshu Desai with learned
Advocate Mr. S. K. Kabara for the respondent at length.
6. Learned Advocate Mr. Desai takes me through the impugned
application filed by the petitioners herein below Exhibit 287 in
the Civil Suit in question, impugned order passed by Trial
Court, and so also, affidavit-in-reply filed by the respondent.
6.1. Learned Advocate Mr. Desai would respectfully submit that
respondent herein filed Regular Civil Suit No. 445 of 1997
(New Regular Civil Suit No. 868 of 2011) against the
petitioners herein, seeking specific performance of an
agreement to sell executed between the parties on 24th
November 1994, in relation to the suit property. It is submitted
that pending the suit, there was a compromise arrived at
between the parties, whereby, compromise agreement executed
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between the parties on 22nd November 2012 / 26th November
2012 came to be filed below Exh.282 before the Trial Court in
the aforesaid suit. It is further submitted that such compromise
agreement was duly signed by all the petitioners/defendants as
well as the respondent/plaintiff and his Advocate. It is further
submitted that after getting the compromise agreement on
record, the Trial Court has read over the terms of compromise
to the parties, which clearly mentioned/observed by the Trial
Court vide its order dated 26th November 2012, whereby,
passed compromise decree in the matter.
6.2. Learned Advocate Mr. Desai would further submit that before
presenting the aforesaid compromise agreement, the
miscellaneous appeal filed by the respondent herein before the
District Court came to be withdrawn on 23rd November 2012,
wherein clearly stated that there is an amicable settlement
arrived between the parties outside the Court. It is submitted
that on the basis of such settlement between the parties, when
consent decree came to be passed by the Trial Court, such
consent decree could not have been questioned by the
petitioners herein.
6.3. Learned Advocate Mr. Desai would further submit that on
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17th June 2013, an impugned application came to be filed by
the petitioners herein below Exhibit 287 in the aforesaid suit,
whereby, questioned the compromise decree. It is submitted
that the aforesaid compromise decree passed by the Trial Court
questioned by the petitioners on ground of alleged fraud. It is
alleged in the impugned application that before such
compromise agreement between the parties, the petitioners
herein have already sold the suit land in favour of one
Navinchandra Harmanbhai Patel by way of registered sale
deed on 30th March 2012, whereby, they could not have agreed
to pass on valid title of suit property in favour of the
respondent herein, inasmuch as, they could not have agreed for
granting relief in terms of Para-9 of the plaint. It is respectfully
submitted that no evidence laid by the petitioners herein in
support of their impugned application, rather failed to prove
and establish any fraud on record.
6.4. Learned Advocate Mr. Desai would further submit that each
and every contention and decisions cited by the petitioners
herein have been dealt with by the Trial Court while rejecting
the impugned application. It is respectfully submitted that
when petitioners herein have failed to prove the fraud on
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record of the case, a mere allegation of fraud would not ipso
facto entitled the petitioners to maintain the impugned
application. It is further submitted that the scope of
interference in such compromise decree is very minimal,
inasmuch as, only in a case of fraud played by the parties to
obtain the decree, the Court should not interfere with such
compromise decree.
6.5. Learned Advocate Mr. Desai would further submit that
petitioners have taken out new grounds to challenge the
consent decree, inasmuch as, violation of any provisions of
FEMA Act etc, so stated in the petition and during the course
of first hearing of this petition, never pressed into service by
petitioners when filed impugned application. It is submitted
such ground is not tenable in law as petitioners have already
submitted copy of PAN Card, Election Card and copy of his
Indian Passport i.e. reply, which indicates that aforesaid
ground canvassed by petitioners is nothing but
misguiding/misleading the Court when filed present writ
application.
6.6. Lastly, learned Advocate Mr. Desai would submit that this
Court, while exercising its power under Article 227 of the
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Constitution of India, having limited jurisdiction to interfere
with the impugned order and as such, there is no gross error of
law, inasmuch as, no jurisdictional error committed by the
Trial Court while rejecting the impugned application, thus, this
Court should not entertain the present writ application.
7. No other and further submissions are being made.
8. Having heard the learned Advocate for the respondent and in
the absence of any appearance on behalf of the petitioners, this
Court left with no option but to consider the submissions made
by learned Advocate Mr. Desai for the respondent.
9. The suit in question filed by the respondent herein, seeking
specific performance of an agreement for sale executed by the
predecessor of the petitioners in the year 1994. It appears from
the record that there was a compromise agreement entered into
between the petitioners and respondent on 26th November
2012, duly signed by them and presented before the Trial Court
below Exhibit 282 in the aforesaid suit. It is not even a case of
the petitioners herein that the signatures which are appeared on
such compromise were forged ones, inasmuch as, not duly
signed by the petitioners. What is alleged in the impugned
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application, whereby, challenged the compromise decree that
under mistaken belief, such compromise was fraudulently
obtained by the respondent herein. Such plea is bereft of any
material particulars and without any basis and evidence,
inasmuch as, the Trial Court, while accepting such
compromise, clearly observed/recorded in its order dated 26th
November 2012, passed below Exhibit 282 i.e. compromise
agreement, that the terms of compromise read over to the
parties in presence of their lawyers, which is accepted by the
parties. Accordingly, compromise decree came to be passed.
The Trial Court while dealing with the impugned application
and so also, dealt with the submissions/decisions canvassed by
the petitioners herein, elaborately answered each and every
submission so made by the petitioners herein.
10. The stand taken by the petitioners that prior to the execution of
the compromise, they have already sold the suit land in favour
of one Navinchandra Harmanbhai Patel on 30th March 2012
and such sale deed is subject matter of Special Civil Suit No.
718 of 2012, filed by the respondent herein on 13th October
2012, is concerned, such plea would not remotely constitute
any element of fraud when compromise decree passed. It is
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settled legal position of law that during the pendency of any
suit for specific performance, any sale deed executed by the
original owner in favour of third party, such sale deed would
always be subject to the outcome of the suit filed seeking
specific performance. [See - Maharaj Singh V/s Karan Singh
reported in (2024) 8 SCC 83].
11. Be that as it may, once as per compromise decree passed in
favour of the petitioners herein, and the aforesaid suit pending
against the third party subsequent purchaser, I do not find any
element of fraud, inasmuch as, the respondent can continue
with his aforesaid suit against the third party - subsequent
purchaser for cancellation of the subsequent sale deed executed
by the petitioners herein in favour of the third party during the
pendency of the suit.
12. It further appears that petitioners have taken out some new
grounds of challenge to the consent decree citing violations of
provisions contained in FEMA Act, which can be discernible
from order dated 29th April 2016 passed by this Court when
issued notice in this matter. Such ground was never pressed
into service by petitioners before the Trial Court when filed
impugned application, thereby, they cannot be permitted to
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question the consent decree on new grounds which never
argued before the Trial Court. Furthermore, along with
affidavit-in-reply of the respondent, a copy of Election Card,
PAN Card and Indian Passport of the respondent are annexed,
which prima facie, dispel the aforesaid ground of the
petitioners.
13. As such, this Court unable to find any perversity, arbitrariness
and/or any erroneous approach on the part of the Trial Court
while rejecting the impugned application. Moreover, the scope
of interference in compromise decree is also very limited. Only
in a case where, a case made out that there is a fraud played by
party while obtaining compromise decree and or any unlawful
agreement or compromise taken place between parties on such
basis decree passed, in other facts/circumstances, the Court
should loath to interfere with such compromise decree.
14. In view of the aforesaid peculiar facts and circumstances of the
present case, and having not found that there is any fraud
germane from the record of the case and as such, petitioners
even failed to prove the fraud on record of the case, thus, no
grounds made out by petitioners of any interference of this
Court in the impugned order passed by the Trial Court, that
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too when have its limited jurisdiction while exercise its power
under Article 227 of the Constitution of India. [See - (i) Sameer
Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal,
reported in 2013 (9) SCC 374 (Para 6 and 7) and (ii) Garment
Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181
(Para 15 and 16)].
15. In view of the foregoing conclusion, the present writ
application is bereft of any merit, requires to be rejected, which
is hereby rejected. Rule is discharged. Interim relief stands
vacated forthwith. No order as to costs.
16. Civil application would not survive.
(MAULIK J.SHELAT,J)
NILESH
