Gujarat High Court
Rajeshbhai Dilipbhai Vyas vs Elektronic Lab - Through Its Proprietor on 8 August, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/7040/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7040 of 2014
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RAJESHBHAI DILIPBHAI VYAS....Petitioner(s)
Versus
ELEKTRONIC LAB - THROUGH ITS PROPRIETOR....Respondent(s)
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Appearance:
MR NIRAV C SANGHAVI, ADVOCATE for the Petitioner(s) No. 1
MR SAMIR B GOHIL, ADVOCATE for the Petitioner(s) No. 1
MR DHARMESH V SHAH, ADVOCATE for the Respondent(s) No. 1
MS. STUTI Y JANI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 08/08/2016
ORAL ORDER
1. By way of this petition under Article 227 of the Constitution of India, the petitioner challenges order passed below Exh.14 in Summary Civil Suit No.43 of 2011, whereby the learned trial Judge rejected application preferred under Order 21 Rule 5 of the Code of Civil Procedure, 1908 for transfer of decree passed in above suit to the Prothomotery and Senior Master, High Court of Bombay for its execution as the judgment debtors are residing and carrying on business at Mumbai and the properties are also situated at Mumbai.
2. Having heard the submissions made at bar and considering the impugned order and further considering the scope of Order 21 Rule 5 of the Code, the learned trial Judge Page 1 of 2 HC-NIC Page 1 of 2 Created On Tue Aug 09 04:00:46 IST 2016 C/SCA/7040/2014 ORDER is required to transfer the decree for its execution at Mumbai and finding as to obtain leave on account of appointment of receiver is perverse and beyond the scope of provisions of Order 21 Rule 5 of the Code. The transfer of decree in exercise of powers under Order 21 Rule 5 is a ministerial act and therefore, the impugned order being erroneous in law requires to be interfered with.
3. In the result, the petition is allowed and the impugned order passed below Exh.14 is hereby quashed and set aside and the decree passed in Summary Civil Suit No.43 of 2011 is transferred to the Prothomotery and Senior Master, High Court of Bombay for its execution in accordance with law. The learned trial Judge shall do the needful to comply with the present order. No costs.
4. It is made clear that all the contentions of the parties are kept open before the Executing Court.
Direct service permitted.
(S.H.VORA, J.) shekhar Page 2 of 2 HC-NIC Page 2 of 2 Created On Tue Aug 09 04:00:46 IST 2016