Gujarat High Court

Paschim Gujarat Vij Company Limited vs Swati Aluminium on 4 September, 2025

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                            C/SCA/13901/2024                                    ORDER DATED: 04/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 13901 of 2024

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                                          PASCHIM GUJARAT VIJ COMPANY LIMITED
                                                        Versus
                                                   SWATI ALUMINIUM
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                      Appearance:
                      MR VIRAL J DAVE(5751) for the Petitioner(s) No. 1
                      MR TUSHAR L SHETH(3920) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                          Date : 04/09/2025

                                                           ORAL ORDER

1. Rule, returnable forthwith. Learned advocate Mr.

Tushar L. Sheth waives service of notice of rule for and

on behalf of the respondent.

2. With the consent of the parties, the matter is taken

up for hearing. Heard learned advocate Mr.Viral J. Dave

for the petitioner and learned advocate Mr.Tushar L.

Sheth for the respondent.

3. The present application is filed under Article 227 of

the Constitution of India seeking following reliefs:

"A That this Hon'ble Court be pleased to issue supervisory writ under article 227 of the Constitution of India quashing and setting aside judgment and nd order dated 04-4-2024 passed by Ld. 2 Additional

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Chief Judicial Magistrate, Gondal in C.M.A no. 45/2023 a copy whereof figure at annexure "A" and further be pleased to restore the execution petition no.4/2019.

B That pending Admission hearing and Final disposal of this petition this Hon'ble Court be pleased to stay implementation and operation of the impugned judgment and order dated 04-4-2024 nd passed by Ld. 2 Additional Chief Judicial Magistrate, Gondal in C.M.A no. 45/2023 a copy whereof figure at annexure "A".

C That this Hon'ble Court be pleased to award the cost of this Special Civil Application to the petitioner.

D That this Hon'ble Court be pleased to pass such other and further order as the nature and circumstance of the case may demand."

SUBMISSION OF THE PETITIONER

4. At the outset, learned counsel Mr. Viral J. Dave

would submit that petitioner had filed Execution Application being Special Execution No.14 of 2011 for

recovery of the amount due and payable from respondent.

He would submit that due to non-availability of the

officer of the petitioner - company for service of Jangam

warrant upon the respondent, Executing Court vide its

order dated 19.10.2023 dismissed the Execution as per

Order 21, Rule 105 of Civil Procedure Code, 1908

(hereinafter referred to as "C.P.C.").

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4.1 Learned counsel Mr. Dave would submit that within

no time, on 23.11.2023, the petitioner had filed impugned

restoration application being C.M.A. No. 45 of 2023,

thereby, requested the Executing Court to restore the

Execution Application on its file.

4.2 Learned counsel Mr. Dave would submit that

despite there is a sufficient cause made out and reasons

stated in the application, Trial Court has erroneously

rejected impugned application.

4.3 Learned counsel Mr. Dave would further submit

that as such, there was no bar to file a fresh execution

application but petitioner chooses to file restoration

application and in that view of the matter also,

restoration application ought to have been restored back

on its file.

4.4 Learned counsel Mr. Dave would further submit

that as such there is no malafide intention on the part

of the officer of the petitioner company not to remain

present but due to official reason and other work, he

was not available in the office which would not have

been ground to dismiss the restoration application.

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4.5 Lastly, learned counsel Mr. Dave would submit that

this court may consider the request made by the

petitioner as prayed in the impugned application by

imposing any condition and he would assure this Court

that on restoration of execution application, petitioner

will proceed further with the execution.

4.6 Making the above submission, learned counsel Mr.

Dave requests this Court to allow the present

application.

SUBMISSION OF THE RESPONDENT

5. Per contra, learned advocate Mr. Tushar L. Sheth

appearing for the respondent vehemently objected the

prayers made by the petitioner and requested this Court

not to entertain the present writ-application filed under

Article 227 of the Constitution of India.

5.1 Learned counsel Mr. Sheth would further submit

that as such there is no gross error of law committed by

the Executing Court while rejecting the impugned

application. It is submitted that no case was made out

by the petitioner thereby it can sought for restoration of

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execution application.

5.2 Learned counsel Mr. Sheth would further submit

that when officials of petitioner - company would not

remain present before the Executing Court, no option left

with the Executing Court but to reject the execution in

accordance with law which was done so.

5.3 Lastly, learned counsel Mr. Sheth would submit

that even if this Court would like to allow the impugned

application thereby restore the execution proceedings on

its file, for no fault of respondent, it is dragged up to

this Court, thereby, petitioner may be put to terms and

respondent may be compensated in terms of money.

5.4 Making the above submission, learned counsel Mr.

Sheth would request this Court not to entertain the

present writ-application.

ANALYSIS

6. Having heard the learned counsel for the respective

parties and after going through the impugned application

and order passed thereon, it appears that execution

application was pursued by the petitioner inasmuch as

Jangam warrant was also issued by the executing court

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but it could not be served as respondent - judgment

debtor was not available on the address as respondent -

company was closed down.

7. Thereafter, warrant was issued at the new address

of judgment debtor but to serve such warrant, help of

officials of petitioner - company required but due to

engagement of the officer in other work, bailiff could not

serve the warrant. Because of such reason, Executing

Court rejected execution application.

8. The petitioner having filed restoration application

wherein clearly stated that all proceeding formalities

have been completed at its end. It is clearly spelt out

from the application that due to pressure of work and as

such to grant additional load of electricity to the

consumer as there was festival of Navratri coming during

that period, officer was unable to coordinate the work

with the bailiff.

9. The Trial Court appears to have not considered

such facts in its proper perspective but took very hyper

technical approach, which requires to have been awarded

inasmuch as in such type of application, liberal approach

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requires to be taken by the Court whereby it can

advance justice to the parties.

10. Further, in absence of any malafide on the part of

the petitioner not to cooperate and give assistance to the

bailiff for service of warrant upon the respondent,

according to my view, Executing Court should have

exercised the discretion available with it under section

151 of CPC, thereby, could have restored the execution

application on its file.

11. It is true that this Court should have sparingly

exercised its jurisdiction vested under Article 226 of the

Constitution of India but it is equally settled that to

keep the Court within its bound and in a case where it

is found that jurisdiction so vested with the Court has

not properly exercised in the interest of justice, this

Court should step into the order and to correct such

gross error of law committed by Trial Court. [See -

Waryam Singh vs. Amarnath,, reported in AIR 1954 SC 215 (para-13) & Bhudev Mallick alias Bhudeb Mallick and Another vs. Ghoshal and Others, reported in 2025 SCC OnLine SC 360 (para 53 to 58)]

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12. At the same time, arguments so canvassed by the

learned advocate Mr. Sheth that due to fault on the part

of the petitioner, unnecessarily respondent requires to be

dragged up to this Court, for which, respondent can be

compensated in terms of money.

13. In light of the aforesaid reasons, this Court is of

the opinion that impugned order requires to be quashed

and set aside. The respondent can be compensated in

terms of money, whereby, petitioner requires to pay