Gujarat High Court
Kutchh District Panchayat Through ... vs Anwarsha Maheboob Saiyed on 22 September, 2025
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4088 of 2024
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 4088 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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KUTCHH DISTRICT PANCHAYAT THROUGH EXECUTIVE ENGINEER
Versus
ANWARSHA MAHEBOOB SAIYED & ORS.
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Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MR.HASMUKH S SOLANKI(6778) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
RC JANI & ASSOCIATE(6436) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/09/2025
ORAL JUDGMENT
1. Rule made returnable forthwith. Learned advocate Mr.
Hasmukh S. Solanki and learned advocate Mr.Keyur A. Vyas
waive service of notice of rule on behalf of respondent No.1.
Learned advocate Mr. R.C. Jani waives service of notice of
rule on behalf of respondent No. 2. Though served, none
appears for respondent Nos. 3 and 4.
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2. With the consent of learned advocates appearing for the
respective parties, the matter is taken up for final hearing.
3. The present application is filed under Article 227 of the
Constitution of India, seeking the following relief:-
(A) Your Lordships will be pleased to admit and allow the
present petition;
(B) Your Lordships will be pleased to issue a writ of certiorari
or a writ in the nature of certiorari or any other appropriate
writ, order or direction quashing and setting aside the order
dated 02.02.2024 passed by learned Principal Senior Civil
Judge, Bhuj Kachhchh below Exhibit 14 in Regular Tamil
Application No. 28/2023, whereby the application of the
executor is allowed by directing to issue an arrest warrant of
immovable property of the petitioner.
(C) Pending admission and final disposal of this petition,
Your Lordships will be pleased to stay the execution,
operation and implementation of the order dated 02.02.2024
passed by learned Principal Senior Civil Judge, Bhuj
Kachhchh below Exhibit 14 in Regular Tamil Application No.
28/2023, whereby the application of the executor is allowed
by directing to issue an arrest warrant of immovable property
of the petitioner;
(D) Such other and further relief that is just, fit and expedient
in the facts and circumstances of the case may be granted."
SUBMISSION OF THE PETITIONER AND RESPONDENT NO.2
4. Learned advocate Mr.Premal Joshi for the petitioner has
drawn the attention of this Court towards the judgment and
decree passed by the learned Trial Court, whereby the learned
Trial Court has held liable only defendant Nos.2 to 4 while
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allowing the suit and not defendant No.1 i.e. present
petitioner, and directed accordingly.
4.1. Learned advocate Mr.Premal Joshi has submitted that
the judgment debtors i.e. original defendants No.2 to 4 have
preferred an appeal being Regular Civil Appeal No.48 of 2008
before the learned Appellate Court below, challenging the
judgment and decree dated 24.03.2008 passed by the learned
Trial Court in Regular Civil Suit No.384 of 2006. He has
submitted that in the said appeal proceeding, the defendant
No.1 is shown as respondent No.2. After hearing the parties,
the learned Appellate Court below has rejected the said
appeal.
4.2. Learned advocate Mr.Premal Joshi has further
submitted that the judgment creditor has preferred execution
proceeding being Execution Petition - Regular No.28 of 2023
for recovery of the decretal amount, wherein the learned
Executing Court has passed the impugned order and issued
arrest warrant of immovable property against all the
defendants i.e. original defendants No.1 to 4, including
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defendant No.1 - present petitioner. He has submitted that
there is no decree against the defendant No.1 - present
petitioner by the learned Trial Court, even though the learned
Appellate Court has issued direction against the petitioner. 3.4
Learned advocate for the petitioner has submitted that since
the present petitioner is not the judgment debtor and there is
no direction against the present petitioner - original defendant
No.1 by the learned Trial Court, the present petitioner has not
filed any appeal under Section 96 of the Code of Civil
Procedure, 1908.
5. Learned advocate Mr. R.C. Jani would adopt the
arguments canvassed by learned advocate Mr. Joshi for the
petitioner. It is submitted that the impugned judgment and
decree passed by the Appellate Court, and also the Trial
Court, were without jurisdiction inasmuch as there is a clear
bar under Section 16 of the Gujarat Civil Services Tribunal
Act, 1972 (hereinafter referred to as "the Act, 1972").
5.1. According to learned advocate Mr. Jani, the judgment
and decree is a nullity, having been passed without
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jurisdiction, thereby, the Executing Court itself requires to
reject the application.
6. Making the above submissions, learned advocate
Mr.Premal R. Joshi appearing for the petitioner and learned
advocate Mr.R.C.Jani appearing for respondent no.2 would
request this Court to allow the present application.
SUBMISSION OF THE RESPONDENT NO.1
7. Per contra, learned advocate Mr.Keyur A Vyas would
submit that as per the judgment and decree passed by the
Appellate Court on 25.04.2018, while rejecting Regular Civil
Appeal No. 46 of 2018 filed by respondent Nos. 2 to 4 herein,
the petitioner herein was held liable to pay monetary benefits
along with respondent Nos.2 to 4 herein.
7.1. Learned advocate Mr. Vyas would further submit that
it would not be correct to say that the petitioner herein is not
a judgment debtor as per the decree passed by the Appellate
Court, inasmuch as the decree passed by the Trial Court,
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whereby the petitioner stood absolved from his liability, now
merges in the decree passed by the Appellate Court.
7.2. Learned advocate Mr. Vyas would submit that the
decree passed by the Appellate Court, whereby the petitioner
was held liable, has not been stayed by this Court in Second
Appeal; until that time, the decree passed by the Appellate
Court was executable against the petitioner herein. It is
submitted that though respondent No. 1 was deprived of
monetary benefits so awarded by the Trial Court and
confirmed by the Appellate Court, and due to an inter-state
dispute between two sets of departments of the State, the
victim is respondent No. 1.
7.3. Learned advocate Mr. Vyas would submit that when
there is no stay against execution proceedings granted by this
Court in any appeal proceeding instituted by the petitioner
herein, no error can be found in the impugned order,
inasmuch as the petitioner having failed to deposit the amount
as per the decree, the Executing Court was well within its
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right to issue an attachment order against the immovable
properties of the petitioner.
7.4. Learned advocate Mr. Vyas would humbly submit that
when point of jurisdiction was never pressed into service
either before the Trial Court or before the Appellate Court; at
this stage, it would not be appropriate on the part of the
judgment debtor, who is otherwise a State instrumentality, to
defeat the right of the decree holder by objecting to a point,
which was never pressed into service before the Court below.
7.5. Lastly, learned advocate Mr. Vyas would submit that
there was inordinate delay on the part of the petitioner in
challenging the judgment and decree passed by the Appellate
Court by way of Second Appeal, and as such, this Court does
not even entertain such delay applications, whereby, the
decree passed by the Appellate Court has now become
confirmed. It is respectfully submitted that the amount so
deposited by the petitioner as per the order dated 13.03.2024
passed by this Court while issuing notice, along with accrued
interest in the FDR, be paid to respondent No. 1 - decree
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holder, and for the balance amount, the petitioner may be
directed to deposit such balance decretal amount, failing
which, its properties may be allowed to be attached as per the
order passed by the Executing Court.
7.6. Making the above submissions, learned advocate Mr.
Vyas would request this Court to dismiss the present
application.
POINT FOR DETERMINATION:
8. Whether, in the facts and circumstances of the present
case, is there any irregularity or illegality committed by the
Executing Court while passing an order of attachment of the
immovable property of the petitioner?
ANALYSIS
9. The facts, which are narrated hereinabove, are not in
dispute. To better understand the controversy, the following
few facts are necessary to be discussed:-
9.1. The present petition is filed by the petitioner -
original defendant No.1 challenging the impugned order dated
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02.02.2024 passed by the learned Principal Senior Civil Judge,
Bhuj - Kachchh below Exh.14 in Execution Petition - Regular
No.28 of 2023, whereby the application of the executor is
allowed by issuing an arrest warrant of immovable property of
the petitioner, pursuant to the judgment and decree dated
24.03.2008 passed by the learned Trial Court i.e. the Principal
Senior Civil Judge, Bhuj - Kachchh in Regular Civil Suit
No.384 of 2006, whereby the learned Trial Court has allowed
the suit and directed the defendants No.2 to 4 to pay the
pension, gratuity with 9% interest p.a. w.e.f. 30.11.1985,
which is confirmed by the learned Appellate Court below vide
judgment and order dated 25.04.2018 by the learned 7th
Additional District Judge, Bhuj - Kachchh in Regular Civil
Appeal No.46 of 2008.
10. The Appellate Court, while dismissing the appeal filed by
respondent Nos. 2 to 4 herein on 25.04.2018, in its operative
portion, clearly held the petitioner - respondent No. 2 of that
appeal, liable to pay monetary benefits to respondent No. 1
(original plaintiff) along with respondent Nos. 2 to 4. It is true
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that the Trial Court had dismissed the suit, holding the
petitioner not liable to pay any monetary benefit as prayed in
the suit, having granted in favor of the plaintiff but to be paid
by respondent Nos. 2 to 4 (defendants No. 2 to 4) as the case
may be.
11. Once, the Appellate Court, having decided the lis
between the parties and while dismissing the appeal filed at
the instance of respondent Nos. 2 to 4, ultimately, held
petitioner along with respondent Nos. 2 to 4 - appellants of
the appeal liable to pay monetary service benefits to
respondent No. 1 - plaintiff, it cannot be gainsaid that such
decree passed by the Appellate Court would be not executable
against the petitioner, as the decree passed by the Trial Court
merged in the decree passed by the Appellate Court.
12. The petitioner, having not questioned the decree till the
filing of the execution application in the year, 2023, cannot
escape from its liability to pay monetary service benefits to
the plaintiff, having also been held liable to pay such amount
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with respondent Nos. 2 to 4 by decree passed by the Appellate
Court.
13. It requires to be noted that after filing of this writ
application, the petitioner appears to have preferred a Second
Appeal before this Court challenging the aforesaid judgment
and decree passed by the Appellate Court, but as there was a
delay of 1357 days in filing such Second Appeal, the petitioner
filed a delay application being Civil Application No. 2083 of
2024. After hearing the parties, today itself, this Court has
rejected the said delay application being Civil Application No.
2083 of 2024.
14. Thus, in view of the rejection of the delay application
filed by the petitioner, the Second Appeal so preferred by the
petitioner was not entertained, having not been registered due
to the rejection of the delay application. Consequently, the
judgment and decree passed by the Appellate Court would
stand confirmed against the petitioner as well.
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15. It is a well-settled legal position of law that an Executing
Court cannot go beyond the decree. As the petitioner failed to
deposit the amount as per the decree, the decree holder -
respondent No. 1 herein, would be within its right to file an
execution application against all the judgment debtors,
including the petitioner.
16. It is required to be observed that respondent Nos. 2 to 4
were not within the local territorial jurisdiction of the
Executing Court vide its order dated 15.03.2023, the Executing
Court has issued notice only against the petitioner - defendant
No. 1. The plain reading of the decree sought to be executed
would not earmark any fixed liability to be paid by the
petitioner.
17. In light of above, it would be inappropriate on the part
of this Court to interfere with the impugned order passed by
the Executing Court, thereby, passed an order under Order XXI
Rule 30 of the Civil Procedure Code, 1908, whereby, an
attachment order of immovable properties of the petitioner
was issued, as it failed to deposit the decretal amount.
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18. Thus, the upshot of the aforesaid observations,
discussions, and reasons, I am of the view that neither any
illegality nor any irregularity is found in the impugned order,
challenged in the present application. The present application
filed at the instance of the judgment debtor requires to be
rejected, having not found any merit in the application.
CONCLUSION
19. In view of the foregoing reasons, the present application
is hereby REJECTED. The impugned order dated 02.02.2024
passed by the Principal Senior Civil Judge, Bhuj - Kachchh,
below Exhibit 14 in Regular Execution Application No. 28 of
2023 is hereby confirmed.
20. It is reported to this Court that in pursuance of the order
dated 13.03.2024, the petitioner already deposited 25% of the
decretal amount, which is ordered to be fixed in a fixed
deposit in the name of the Nazir of the Court concerned.
21. As this Court is not entertaining the present application,
the Executing Court is hereby directed to pay such amount
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with accrued interest in the FDR to respondent No.1/decree
holder/original plaintiff, on proper verification in accordance
with law.
22. Furthermore, considering the peculiar facts and
circumstances, and as the execution proceeding instituted in
the year, 2023 but due to the stay granted by this Court
against impugned order, it may not have progressed further;
hence, the Executing Court is hereby directed to hear and
decide the execution application as early as possible,
preferably within six months from the date of receipt of the
copy of this order.
23. Rule is discharged. Interim relief granted by this Court
vide its order dated 13.03.2024 stands vacated forthwith. No
order as to cost. The Civil Application, if any, stands disposed
of accordingly.
(MAULIK J.SHELAT,J)
MOHD MONIS
