Rajasthan High Court - Jodhpur

Shyamsunder vs Bhagwatilal (2025:Rj-Jd:12210) on 4 March, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:12210]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 3298/2025

Shyamsunder S/o Shri Kishorilal Ji, Aged About 65 Years,
Resident Of Naharheda, At Present Shram Bhojanalya, National
Highway-8, Near Pancholi Hospital, Kherwara, Tehsil Kherwara,
District Udaipur (Raj.).
                                                                    ----Petitioner
                                    Versus
1.       Bhagwatilal S/o Kanji Nai, Resident Of Sardar Near Sardar
         Valabh Bhai Choraha, Kherwara, Tehsil Kherwara, District
         Udaipur (Raj.)
2.       Rajtanlal S/o Kishorilalji Sharma, Resident Of Opposite Of
         Pancholi Hospital Near National Highway, Kherwara, Tehsil
         Kherwara, District Udaipur (Raj.)
3.       Deepchand S/o Kishorilal Ji, Resident Of Opposite Of
         Pancholi Hospital Near National Highway, Kherwara, Tehsil
         Kherwara, District Udaipur (Raj.)
                                                                 ----Respondents


For Petitioner(s)          :    Mr. Prashant Tatia and Mr. Ankit
                                Somani on behalf of Mr. Sajjan Singh
                                Rajpurohit
For Respondent(s)          :    Mr. Chirag Mathur
                                Mr. Aman Saxena



               HON'BLE DR. JUSTICE NUPUR BHATI

Order

04/03/2025

1. The instant writ petition under has been filed under Article

227 of the Constitution of India challenging the order dated

24.01.2025 (Annex.8) passed by the Civil Judge and Judicial

Magistrate, Kherwada, Udaipur ('learned executing court') in

Execution 07/2024, whereby the learned executing court has

dismissed the objection filed by the petitioner (Judgment-debtor)

to the execution of decree as well as an application preferred

[2025:RJ-JD:12210] (2 of 8) [CW-3298/2025]

under Order XXI Rule 13 of Code of Civil Procedure, 1908 ('CPC')

and allowed the application filed by the respondent (decree

holder) for providing police protection for delivery of possession of

the disputed property.

2. Briefly stated that facts of the case are that the respondent

filed COS No.07/2016 for eviction and payment of arrears of rent

against the petitioner herein before the Civil Judge, Kherwada,

Udaipur. The aforesaid suit came to be decreed in favour of the

respondent vide judgment and decree dated 12.01.2024

(Annex.8). Subsequently, the respondent filed execution

application (Annex.6) under Order XXI Rule 11, CPC for execution

of decree dated 12.01.2024. During the pendency of the

execution, the petitioner filed objection dated 07.11.2024

(Annex.5 Colly.) to the execution as well as an application

(Annex.7) under Order XXI Rule 13, CPC before the learned

executing court, which came to be dismissed by the learned

executing court vide order dated 24.01.2025 (Annex.8). Aggrieved

by the same, the petitioner has filed the instant writ petition.

3. Learned counsel for the petitioner submits that learned

executing court has erred in dismissing the objection (Annex.5) as

well as the application (Annex.7) filed under Order XXI Rule 13 of

the CPC filed by the petitioner as the decree lacked the specific

particulars of the property for which execution application

(Annex.6) was filed by the respondent. He submits that the

disputed property/shop for which decree is passed is one amongst

the three adjoining shops in the same vicinity, and all of them are

in possession of the petitioner, thus, the execution of the decree

which lacks specific particulars of the disputed property would

[2025:RJ-JD:12210] (3 of 8) [CW-3298/2025]

cause prejudice to the petitioner. He also submits that in absence

of the specific particulars of the disputed property/shops in the

decree 12.01.2024 (Annex.1), the learned executing court should

have appointed a commissioner for the identification of the

specific particulars of such disputed property/shop. He placed

reliance upon the following judgments:

(i) Most. Gangia Devi and Anr. Vs. Bal Kishun Sahu and ors.

[W.P.(C) No.4609/2013 (decided on 25.04.2018),

Jharkhand High Court];

(ii) N. Valliammal (dead) and Anr. Vs. M. Kanniah and ors.

[Second Appeal Nos.1040-1042 of 2015 and M.P. Nos.1 and

2 of 2015 (decided on 09.12.2015), Madras High Court].

4. Per contra, learned counsel for the respondent submits that

the instant writ petition is not maintainable as an alternative

remedy under Section 115 of the CPC is available.

5. Learned counsel for the respondent submits that in the

present case application under Order XXI Rule 11 of CPC was filed

for issuance of warrant of possession and not for attachment

hence, the application (Annex.7) filed by the petitioner under

Order XXI Rule 13 of CPC was misconceived as the same relates to

attachment of immovable property. He also submits that the

petitioner has not raised any objection to the description of the

disputed property/shop before the learned trial court and for the

first time this objection has been raised before the learned

executing court, hence the same is not permissible. He also

submits that the description of the disputed property/shop has

been clearly mentioned in the judgment and decree dated

12.01.2024 (Annex.1). He also submits that decree cannot be

[2025:RJ-JD:12210] (4 of 8) [CW-3298/2025]

read in isolation and the same has to be read with the judgment.

He placed reliance on the judgment passed by the Madhya

Pradesh High Court in Devendra Kumar Sharma vs.

Sameermal Jalori and Ors., MANU/MP/1333/2021.

6. In rebuttal the learned counsel for the petitioner submits

that mere availability of alternative remedy is no bar to exercise of

supervisory jurisdiction under Article 227 of the Constitution of

India. He placed reliance on the judgment of the Hon'ble Supreme

Court in M/s Tamil Nadu Cements Corporation Limited vs.

Micro and Small Enterprises Facilitation Council and Anr.,

2025 INSC 91.

7. Heard the counsel for the parties and perused the material

available on record.

8. This court, at the outset, finds it relevant to deal with the

preliminary objection raised by the respondent regarding the

maintainability of the instant petition under Article 227 of the

Constitution of India. This court is of the considered view that

mere availability of remedy of revision cannot be a bar to exercise

the supervisory jurisdiction under Article 227 of the Constitution of

India. Therefore, the preliminary objection raised by the learned

counsel for the respondent is not sustainable.

9. Coming to the merits of the instant petition this court finds

that the petitioner filed objection (Annex.5) to the execution of the

decree dated 12.01.2024 (Annex.1) as well as application

(Annex.7) under Order XXI Rule 13 of the CPC before the learned

executing court only on the ground that the decree dated

12.01.2024 (Annex.1) lacks specific description/particulars of the

disputed property/shop, hence is non-executable. It is, however,

[2025:RJ-JD:12210] (5 of 8) [CW-3298/2025]

important to note here that the learned counsel for the petitioner

has not disputed the fact that the specific description of property

in question is mentioned in the plaint filed by the respondent as

well as in the judgment dated 12.01.2024 (Annex.1).

10. As far as the contention of the learned counsel for the

petitioner regarding the application (Annex.7) filed by petitioner

under Order XXI Rule 13 of the CPC is concerned, this court finds

that in the execution application (Annex.6) filed under Order XXI

Rule 11 of the CPC by the respondent, no prayer was made for the

attachment of the disputed property/shop hence, the provisions of

Order XXI Rule 13 of the CPC, which provide for the particulars to

be contained in application for attachment of immovable property,

are inapplicable. Order XXI Rule 13 of the CPC reads as under:

"13. Application for attachment of immovable property to contain certain particulars.--Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot--

(a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

(b) a specification of the judgment-debtor's share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same."

Therefore, the application (Annex.7) filed under Order XXI Rule 13

was misconceived and has rightly been dismissed by the learned

executing court.

11. Now coming to the contention of the petitioner regarding

non-executability of the decree dated 12.01.2024 (Annex.1) in

absence of specific particulars of the disputed property/shop is

considered, this court finds that the judgment dated 12.01.2024

[2025:RJ-JD:12210] (6 of 8) [CW-3298/2025]

(Annex.1) passed by the learned trial court clearly refers to the

detailed description of the property mentioned in the plaint filed

by the respondent. In fact, the learned trial court framed issue

no.1 wherein the respondent (Plaintiff) was required to prove

whether he has rented out the shop and premises, the description

of which was mentioned in paragraph 1 and 2 in the plaint, but the

petitioner has not denied the said description to be wrong or

incorrect before this court. The issue no.1 as framed by the

learned trial court is reproduced as under:

"01- आया वादपत्र के चरण संख्या 1 व 2 में वर्णित दु कान व परिसर पर वादी प्रतिवादी की आपसी सहमति से प्रतिवादी की मास से प्रतिमास की किरायेदारी चली आ रही है ? वादी "

11.1 The learned executing court referred to the judgment dated

12.01.2024 (Annex.1), on basis and in accordance to which

decree dated 12.01.2024 (Annex.1) was drawn, and after taking

note of the fact that the learned trial court framed issue no.1 on

basis of the description of the disputed property/shop as

mentioned in the plaint and that the said disputed property/shop

has been referred to as 'परिसर / किरायेशुदा विवादग्रस्त परिसर' throughout

the judgment (Annex.1), concluded that the same phrase has

been used in the decree (Annex.1) to refer to the disputed

property/shop. Thus, the learned trial court after referring to the

judgment (Annex.1) construed the terms of the decree.

11.2.It is a settled position of law that the executing court cannot

go behind or beyond the decree, however, it is also the duty of the

executing court to find out the true effect of the decree and for

construing a decree or the meaning of the words used therein the

executing court can take into consideration the pleadings as well

as the proceedings leading upto the decree, which will naturally

[2025:RJ-JD:12210] (7 of 8) [CW-3298/2025]

include the judgment on basis of which the decree has been

drawn. The aforesaid view has been propounded by the Hon'ble

Supreme Court in Bhavan Vaja v. Solanki Hanuji Khodaji

Mansang, (1973) 2 SCC 40. The relevant paragraph of the

aforesaid judgment is reproduced as under:

"20. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began & ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them."

[2025:RJ-JD:12210] (8 of 8) [CW-3298/2025]

11.3.Thus, the learned executing court has rightly construed the

decree by referring to the judgment (Annex.1) and for the same

reason the decree (Annex.1) cannot be termed as non-executable,

in sequitar, the contention raised by the counsel for the petitioner

in this regard has no force. And in view of the above conclusion

the contention of the counsel for the petitioner that the execution

of the said decree would cause prejudice to the petitioner as the

disputed property/shop is one amongst the three adjoining shops

in the same vicinity, also loses its vigour, more so for the reason

that the contention regarding such prejudice was made for the

first time before this court.

12. Furthermore, the submission made by the learned counsel

for the petitioner that the learned executing court should have

appointed commissioner to identify the disputed property/shop

does not have any force for the simple reason that the petitioner

has nowhere prayed in his applications (Annex.5 and 7) before the

learned executing court for the same. Also, the judgments relied

upon by the learned counsel for the petitioner are distinguishable

on facts, therefore, do not render any assistance to him.