Gujarat High Court
Swaminarayan vs Official on 24 January, 2011
Author: K. A. Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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CRA/25/1999 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 25 of 1999
With
CIVIL
REVISION APPLICATION No. 36 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SWAMINARAYAN
TRADING CO. & 2 - Applicant(s)
Versus
OFFICIAL
RECEIVER - Opponent(s)
=========================================================
Appearance
:
MR
MEHUL S SHAH for
Applicant(s) : 1 - 3.
MR PV HATHI for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 24/01/2011
COMMON ORAL JUDGMENT
Since both these Civil Revision Applications are interconnected and since parties are common, the same are heard and being disposed of by this common judgment and order.
The Civil Revision Application No.25 of 1999 is filed by the applicant - original defendant in Summary Suit No.879 of 1984 challenging the order passed by the learned City Civil Judge, Ahmedabad in Civil Misc. Application No.305 of 1998 refusing to condone the delay and setting aside the exparte decree passed by the City Civil Court.
The said Civil Revision Application was admitted by this Court on 6.5.2002.
The Civil Revision Application No.36 of 1999 is filed by the applicant - original decree holder challenging the order passed by the learned Second Jt. Civil Judge (S.D.), Ahmedabad Rural on 6.11.1998 below an application Ex.26 in Special Execution Darkhast No.24 of 1997 whereby the said application was allowed and the order issuing warrant of attachment of immovable properties belonging to the third party was quashed subject to the condition that the decree holder would lead necessary evidence in respect of other properties of the judgment debtor and take out the fresh warrant against him. This Civil Revision Application was also admitted n the same date.
Heard Mr.P.V.Hathi, learned advocate appearing for the decree holder and Mr.Mehul S. Shah, learned advocate appearing for the judgment debtor in both these Civil Revision Applications.
So far as first Civil Revision Application i.e. Civil Revision Application No.25 of 1999 is concerned, a Summary Suit was filed for recovery of money. The defendant filed appearance through their advocate within the prescribed time limit, but before the summons for judgment was filed the said advocate expired and summons for judgment was never served upon the defendants. Since no leave to defend was filed, exparte decree was passed against the defendants. The said decree was sought to be executed after about the period of 10 years and the defendants came to know about such a decree only on receipt of the summons in execution proceedings. Accordingly, Civil Misc. Application was filed for condonation of delay in setting aside the exparte decree. However, the said Misc. Civil Application was rejected by the learned City Civil Judge only on the ground that there was no sufficient cause for condoning the delay in filing the application to set aside the decree passed against them. The Court further observed that since the defendants failed to make out any sufficient reasons for such a long delay of 10 years there was no case for getting the delay condoned and hence the application for condonation of delay was rejected. Consequently the decree was not set aside. Against this order the present Civil Revision Application was filed.
Since the decree was not set aside execution proceedings were filed being Special Execution Darkhast No.24 of 1997 whereby warrant of attachment was issued and since it was against the immovable properties belonging to third party an application Ex.26 was filed which ultimately came to be allowed and the said order allowing the said application was challenged before this Court.
Mr.Hathi in support of his submissions relied on the decision in the case of Ramesh and others Vs. Ratnakar Bank Ltd., reported in (2006) 12 SCC 111, wherein while setting aside the decree the Court directed the judgment debtor to deposit substantial amount with the trial Court. The 50% amount which is directed by this Court to the judgment debtor to deposit, would be permitted to be withdrawn by the decree holder subject to the final out come of the Suit.
Having considered the submissions made by the learned counsels appearing for the respective parties and having gone through the impugned order passed by the Court below, the Court is of the view that admittedly the decree was not passed on merits. Since the defendants failed to file their leave to defend affidavit the exparte decree was passed and pursuant to the said exparte decree execution proceedings were initiated. It is true that there is huge delay of more than 10 years.
However, the defendants to some extent could explain the said delay. In any case, the matters would have to be decided on merits and hence in the interest of justice the Court is inclined to allow Civil Revision Application No.25 of 1999 with certain stringent conditions. The decreetal amount is of Rs.3,41,000/-. The defendants are directed to deposit 50% of the decreetal amount before the trial Court within two months from the date of receipt of the writ or from the date of receipt of certified copy of this order, whichever is earlier. If the said amount is deposited as directed by this Court, the judgment creditor is allowed to withdraw it and impugned order passed by the learned City Civil Judge rejecting the application for condonation of delay and setting aside the decree would be quashed and set aside and the learned City Civil Judge would take up the Civil Suit for deciding afresh on merits. The said Civil Suit would be decided and disposed of preferably within period of six months from the date of deposit of the said amount before the trial Court. It is made clear that if the defendants fails to deposit the said amount within the period as directed by this Court, the order passed by the trial Court will stand and there is no question of deciding the Suit afresh.
In view of the above order, Civil Revision Application No.36 of 1999 challenging the order of the Executing Court would no longer survive and it is accordingly disposed off.
The Court makes it clear that none fulfillment of this condition would entitle the decree holder to proceed with the execution proceeding and execute the same in respect of the immovable properties over which the warrant of attachment was cancelled by the trial Court, so far as judgment debtor's share in the said property is concerned.
With these directions and observations both these Civil Revision Applications are accordingly disposed of without any order as to costs.
(K. A. PUJ, J.) kks Top