Gujarat High Court
Gova vs Panchabhai on 8 September, 2010
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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SCA/10771/2010 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10771 of
2010
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GOVA
VELJI & 3 - Petitioner(s)
Versus
PANCHABHAI
GOKALBHAI & 1 - Respondent(s)
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Appearance :
MR
SHIVROOP G AEKWAD for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 - 3, 3.2.1, 3.2.2, 3.2.3,
3.2.4, 3.2.5, 3.3.1, 3.3.2, 3.3.3, 3.3.4,3.3.5 MR NARENDRA GAEKWAD
for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 - 3, 3.2.1, 3.2.2, 3.2.3,
3.2.4, 3.2.5, 3.3.1, 3.3.2, 3.3.3, 3.3.4,3.3.5 NATVARLAL J MEHTA for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 - 3, 3.2.1, 3.2.2, 3.2.3,
3.2.4, 3.2.5, 3.3.1, 3.3.2, 3.3.3, 3.3.4,3.3.5
None for
Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 08/09/2010
ORAL ORDER
Draft amendment is allowed. The petitioners to carry out necessary amendment on or before 9th September, 2010.
1. In this petition, the petitioners seek to challenge, after almost 9 years, the judgment and decree dated 27.03.2001 passed by the learned trial Court in Regular Civil Suit No.295 of 1992.
1.1 Besides raising the challenge after almost 9 years against the judgment and decree dated 27.03.2001 passed in Regular Civil Suit No.295 of 1992, the petitioners have also challenged a separate and distinct order dated 28.07.2010 passed below applications Exh.75 and 85 by the learned Executing Court in Regular Darkhast No.100 of 2003 i.e. in execution proceedings.
The petitioner is the judgment-debtor.
2. The respondent No.1 is the original plaintiff and the respondent No.2 is the original defendant No.2 in the original suit proceedings.
2.1 The respondent No.1 had filed the suit, which is sought to be made subject matter of present petition, being RCS No.295 of 1992 praying, inter alia, for declaration that the petitioner-original defendant was liable to remove the obstructions caused on public road in village Navanagana.
2.2 In the said suit proceedings, the petitioner had filed written statement contesting the allegations made and contentions raised by the plaintiff (present respondent) in the suit.
2.3 After hearing the parties, the learned trial Court passed the judgment and decree dated 27.03.2001 whereby the Court allowed the suit in favour of the plaintiff and directed present petitioner-original defendant to remove the encroachments.
In the year 2003, the original plaintiff-present respondent No.1 filed Regular Darkhast No.100 of 2003 for executing the aforesaid judgment and decree dated 27.03.2001.
2.4 At this stage, it is pertinent to note that only after the execution proceedings were filed (meaning thereby after long delay), the petitioner preferred appeal against the judgment and decree dated 27.03.2001. In view of delay in preferring the appeal, request for condonation of delay was made, which was rejected by the learned first appellate Court by order dated 31.08.2004.
2.5 Having failed at that stage, petitioner preferred a writ petition being SCA No.2173 of 2005 and challenged the order dated 31.08.2004 passed by the learned first appellate Court rejecting the request for condonation of delay in preferring the appeal.
2.6 By order dated 09.05.2005, the said writ petition (against the order rejecting application seeking condonation of delay) was dismissed by the High Court.
All these proceedings obviously caused delay in the execution proceedings.
2.7 It is also pertinent to note that the petitioner also filed a writ petition being SCA No.8514 of 2005 against the order dated 04.05.2004 passed by the learned Executing Court in aforesaid Regular Darkhast No.100 of 2003.
The said writ petition (SCA No.8514 of 2005) was also dismissed by order dated 09.05.2005.
2.8 It appears that at one stage, the proceedings of execution proceedings were not taken further by the Executing Court since the original plaintiff was not regularly prosecuting the said execution/darkhast proceedings. However, by order dated 29.04.2008 passed below application Exh.41 in the darkhast proceedings, the proceedings were restored and restarted by the learned Executing Court.
2.9 Again, the petitioners herein challenged the said order dated 29.04.2008 passed below application Exh.1 by the learned Executing Court by preferring Civil Misc. Appeal No.96 of 2009. During hearing of present petition, this Court is given to understand that the said appeal against the order below application Exh.1 is still pending.
2.10 It deserves to be mentioned at this stage that now, in present petition, after the aforesaid writ petitions and other proceedings, the petitioner has again challenged the original/parent judgment and decree dated 27.03.2001 after almost 9 years, and that too in a writ petition, after the appeal preferred against the judgment and decree has been dismissed in view of the order made in application seeking condonation of delay.
3. It is not in dispute that the order passed by the High Court confirming the order of learned first appellate Court rejecting the application seeking condonation of delay, was not carried further and was not challenged.
Thus, the rejection of application seeking condonation of delay in filing the appeal has attained finality since 2005. Having failed in challenging the judgment and decree by way of appeal and after having taken out writ petition proceedings, the petitioner has now again sought to challenge the original/parent judgment and decree.
The aforesaid narration of the factual background and events clearly demonstrate that the petitioner is adopting one or another course of action with an intention of delaying the execution of the original/parent judgment and decree dated 27.03.2001 and since last almost 9 years, the said judgment and decree has remained without final execution.
After having failed in appeal proceedings and also in writ petition proceedings, and that too before 5 years, the petitioner has again approached this Court with present petition challenging the original/parent judgment and decree dated 27.03.2001.
It is needless to state that such petition does not deserve to be and cannot be entertained.
On the face of it, present petition proceedings so far as it seeks to challenge the judgment and decree dated 27.03.2001, amounts to abuse of process of law, particularly abuse of writ proceedings.
Therefore, this Court is inclined to impose cost while dismissing present petition.
Such conduct on the part of the petitioner would have, ordinarily, warranted heavy cost, however, considering the fact that the petitioner appears to be from a family which cannot afford heavy cost and probably may be ill-advised, it appears appropriate to impose only token cost of Rs.1,000/- while dismissing the petition against the judgment and decree dated 27.03.2001.
4. The other part of the challenge in present petition is against the order dated 28.07.2010 which has been passed by the learned Executing Court below applications Exh.75 and 85 in the aforesaid Regular Darkhast No.100 of 2003.
4.1 It may be recalled that the said darkhast proceedings are in connection with the judgment and decree dated 27.03.2001.
4.2 By application Exh.75 the decree holder requested the learned Executing Court to reissue warrant, which was originally issued at Exh.32.
4.3 On the other hand, the judgment debtor also filed application Exh.85 seeking permission to adduce evidence at this stage, after so many years. The learned Executing Court has, in the impugned order dated 28.07.2010 recorded that the judgment debtor i.e. the petitioner had earlier already filed objections against the darkhast.
The said objections are on record of the Executing Court at Exh.19. The learned Court has, upon examining the objections Exh.19, noticed that the objections which are sought to be raised by application Exh.85, have not been originally raised in the objections original filed at Exh.19.
In this regard, the learned Executing Court has recorded as follows:-
On perusal of the record, it appears that the Judgment-debtor has also filed objections at Exh.19. In the said objections, the Judgment-debtor has not raised any such objection. Ld.Advocate Mr. Patel for the Judgment-debtor has argued that R.C.S.No.111 of 1986 was filed and said suit was not decided on merits and it was dismissed on the point of limitation and that in the said suit, the possession of the judgment-debtor was believed. But, it appears that thereafter, the judgment debtor has also filed objection in this execution petition and my Ld. Predecessor has also passed an Order below Exh.1 and the order is passed to remove the encroachment. It is pertinent to note that Hon'ble Court can not go behind the decree. There is nothing on record to show that Decree-holder has committed any fraud or has made any misrepresentation.
The Executing Court has also recorded in the impugned order that:-
Further more, My Ld.Predecessor has passed order below Exh.1. The said order is passed on 4/5/2004. However, it appears that against the said order, the judgment-debtor prefers no any appeal or revision.
4.4 The Executing Court, after considering the aforesaid aspect and also after taking into account provisions under Section 54 of the Evidence Act, rejected the application Exh.85 filed by present petitioner.
By the said common order dated 28.07.2010 the learned trial Court has directed the registry to reissue the warrant which was originally issued at Exh.32.
The direction to reissue the warrant is passed in view of the fact that the decree has still remained unexecuted after almost 9 years.
5. In light of the facts and circumstances noted above and considering the fact that the original suit proceedings related to prayer for removal of encroachment and having regard to the fact that since March 2001, the decree has remained unexecuted and the petitioner has taken out one proceedings after another and lastly by virtue of Exh.85 the petitioner sought permission to lead evidence and/or raise fresh objections at this stage, I do not see any reason to interfere with the order dated 28.07.2010.
From the material on record, it does not come out that the learned Executing Court has committed any error in disallowing application Exh.85 and/or passing the impugned order dated 28.07.2010.
The petitioner has failed to make out any case against the impugned order.
The petition fails and the same is rejected. The petitioner shall pay the cost within 4 weeks, which shall go to legal aid.
[K.M.Thaker, J.] kdc Top