Gujarat High Court
Lhrs Of Decd. Dhirubhai Laxmanbhai ... vs Ashvin Jayantilal Doshi on 21 February, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/168/2023 ORDER DATED: 21/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 168 of 2023
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LHRS OF DECD. DHIRUBHAI LAXMANBHAI DOBARIYA
Versus
ASHVIN JAYANTILAL DOSHI
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1,1.1,1.2,1.3
MR. MEHUL SHAH, SR. ADVOCATE WITH MR HARESH H PATEL(611) for
the Respondent(s) No. 1,2
MR JAY H PATEL(11511) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 21/02/2023
ORAL ORDER
1. By way of present petition, the petitioner is aggrieved by the impugned order dated 8.8.2022 passed below Exh-27 by the learned Small Causes Court, Rajkot in Regular Execution Application No. 8/2014.
2. The brief facts leading to the filing of the present petition read thus:
2.1 The petitioners herein are the original opponents -
judgment debtors and respondents herein are the original applicants - judgment creditors in Execution Application No. 8/2014 filed by the respondents in the Small Causes Court, Rajkot seeking execution of judgment and decree dated 18.7.2014 passed by the learned Additional Judge, Small Causes Court, Rajkot in Regular Civil Suit No. 76 of 2000 in connection with a premises i.e. godown Page 1 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined admeasuring about 1050 sq. yards, situated on plot No. 17, Survey No. 387-388 paiki, Gondal Road, Rajkot.
2.2 The petitioners herein have challenged the legality and validity of the order dated 8.8.2022 passed below Exh-27, rejecting the application seeking direction as provided under Order XXII Rule 4 of the Code of Civil Procedure, 1908 for passing an order of abatement of suit as the respondents did not bring on record representatives of the judgment debtor within prescribed time limit and after the prescribed time limit, proceedings get bated automatically.
3. Mr. Jasani, learned advocate for the petitioner submitted that the issue involved pertains to a go-down admeasuring about 1050 sq. yards, situated on plot No. 17, Survey No. 387-388 paiki, Gondal Road, Rajkot. It is the case of the respondents that the above referred premises was rented to one Dhirubhai Laxmanbhai Dobariya for the purpose of storage of LPG Gas Cylinders and a Rent Agreement to that effect came to be executed. The rent being overdue, the respondents desired to discontinue with the arrangement which prevailed between the parties and a legal notice for eviction was addressed for terminating tenancy, which resulted into filing of Regular Civil Suit No.76 of 2000, which was filed on 4.7.2000 before the learned Small Causes Court, Page 2 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined Rajkot and the said Suit came to be decree in favour of the respondents. The predecessor of the petitioner was not granted vacant and peaceful possession of the said premises and further directed to pay an amount of Rs.90,000/- towards rent. Being aggrieved by the said order, the petitioner herein preferred an appeal being regular Civil Appeal No.66/14, which came to be dismissed by order dated 20.5.2019 and that the judgment and decree passed by learned Small Causes Court dated 18.7.2014 came to be confirmed. It was submitted that the said order was challenged by filing Civil Revision Application being CRA No. 309/2019, which also came to be dismissed. The respondents herein preferred instant application being Regular Execution Application No. 8/2014. Pending the CRA No. 309/2019, the predecessor of the petitioner Dhirubhai Laxmanbhai Dobariya passed away on 17.4.2021 and the legal heirs were brough on record by filing Civil Application No.1 of 2021. The said Civil Revision Application came to be dismissed by order dated 4.4.2022.
4. Being aggrieved by the same, the petitioner approached the Hon'ble Apex Court by filing Special Leave to Appeal (C) No. 8819 of 2022, which came to be dismissed by order dated 18.5.2022. Mr Jasani, learned advocate for the petitioner submitted that upon death of any of the parties, legal heirs are to be brought on record Page 3 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined within a period of 90 days. In the instant case, predecessor of the petitioners - judgment debtor passed away on 17.4.2021 and, therefore, the heirs were required to be brought on record by the respondents in the pending Execution Application on or before 17.7.2021. It was submitted that the respondents herein moved an application Exh-23 for bringing on record the legal heirs of the deceased judgment debtor. The said application was admittedly filed after a period of 90 days and that the said application was not accompanied by any application for condonation of delay nor the delay in preferring the said application explained. Mr. Jasani, learned advocate submitted that application below Exh- 27, which is duly produced at page-162 Annexure "I" was filed under provision of Order 22 Rule 4 and considering the same, the Court ought to have allowed the said application wherein the petitioner was seeking order for abatement of the execution proceedings.
5. Having erred in passing the aforesaid order rejecting the application below Exh-27 preferred by the petitioners seeking abatement of execution proceedings, the petitioner herein is constrained to approach this Court by filing the present petition.
6. Heard Mr. Mehul, S. Shah, learned Senior Counsel with Mr. Haresh Patel, learned advocate appearing for the respondents. Mr. Mehul Shah, learned Senior Counsel Page 4 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined submitted that the application which was filed below Exh- 27 invoking Order 22 Rule 4 does not apply to the execution proceedings. It was submitted that on the said ground alone, the petition is required to be dismissed in limine. It was submitted that the petitioner are well aware of the proceedings pending before the executing Court, having appeared and having being joined as legal heirs of Dhirubhai Laxmanbhai Dobariya in CRA No. 309/19 and Special Leave to Appeal (C) No. 8819/2022, it was submitted that having appeared before aforesaid Forum, now it is not open for the application below Exh- 23 be ordered to be abated for the reason that the legal heirs i.e. petitioner deceased Dhirubhai Laxmanbhai Dobariya, who expired pending proceedings on 17.4.2021, are not brought on record within 90 days from the date on which Dhirubhai Laxmanbhia Dobairya expired.
7. Placing reliance on the aforesaid submission, Mr. Shah, learned Senior Counsel submitted that no interference is called for in the order passed below Exh- 27, which came to be rejected by the executing Court.
8. Heard learned advocates for the respective parties, it is apposite to refer to the order passed below Exh-27 dated 8.8.2022, which reads thus: (True Translation) Page 5 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined "Regular Execution No.08/2014 Order below Exh.-27 Read the present application. Heard both parties.
It has been submitted by giving the present application by the defendant that after the death of the defendant, his heirs are not joined in this case within time limit hence, submission is made to abate present suit.
It is submitted on behalf of the plaintiff that in this case a suit has been filed against the original defendant vide Regular Civil Suit No.76/2000 wherein on passing an order in favour of the plaintiff, execution as per the decree which is a present execution which has been filed.
In this case, on looking at the fact on record, the defendant Dhirubhai Dobariya died on 17/04/2021, it has been produced by the opponent on 16/07/2021 alongwith a pursis of Exh.-18, a death certificate. Thereafter, on 21/08/2021 an application for joining heirs of the deceased defendant has been made by the plaintiff. Thus, an application for joining heirs of the deceased has been filed from withing as much as 36 days on a fact of defendant's death being produced on record and all the parties are aware of the present case and execution and contention of the subject of present suit has been submitted to the Hon'ble Gujarat High Court and the Hon'ble Supreme Court, considering all these circumstances and when an application to join heirs is produced within 36 days, Be pleased to pass an order rejecting the application for abatement of the present suit produced by the defendant in the interest of justice.
Page 6 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined Date:-08/08/2022 Sd/-illegible Place:-Rajkot Judge, Small Cause Court, Rajkot."
9. Undisputedly, the application below Exh-27 came to be filed by the petitioner under Order 22 Rule 4 of the Code of Civil Procedure. At this stage, it is apposite to refer to Order 22 Rule 12. Order 22 Rule 12 provides that Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.
10. It is apposite to refer to the position of law reported in AIR 1998 SC 1168, in case of V. Uthirapathi v. Ashrab Ali and others, wherein para-15 reads thus:
"It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies an d his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in t he eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring Page 7 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined the legal representatives of he judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code or Civil Procedure."
11. Undisputedly, Dhirubhai Laxmanbhai Dobariya expired on 17.4.2021, pending execution proceedings. The legal heirs of the deceased Dhirubhai Dobariya were brought on record pending the Civil Revision Application No. 309/19 and the proceedings before Hon'ble Supreme Court in Special Leave to Appeal (C) No. 8819/2022.
12. In light of the aforesaid facts and position of law, as referred above, Order 22 Rule 4 of the Code, is not applicable to execution proceedings. The executing Court having considered the factual position and the position of law could not be said to have committed any error in Page 8 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined dismissing the application below Exh-27. In view of this Court, considering the ratio, as discussed above, if after filing of the Execution petition, either the decree holder or the judgment debtor dies and legal representatives are not brought on record, there is no abatement of the execution petition. There is no time limit prescribed in bringing the legal heirs on record in execution proceedings. However, in case of death of judgment debtor, the Court can fix reasonable time for the said purpose and if the decree holder fails to file application for aforesaid purpose, the Court can dismiss the execution petition for default. In any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives under Section 50 of the Code of Civil Procedure, to file a fresh execution petition in case of death of the decree holder or in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor. If such an application is filed, it is only in continuation of the pending execution petition, the one which was filed in time by the decree holder initially.
12.1 However, in the facts of the present case, as considered by the Executing Court, an application for joining legal heirs of the deceased came to be filed within 36 days on the fact of defendant's death Certificate being produced on record. All the parties were aware of the Page 9 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined same. The legal heirs even appearing in the proceedings before this Court and Hon'ble Supreme Court. The Court below held that application for joining legal heirs was produced within a period of 36 days and, therefore, rightly rejected the application for abatement of the Suit.
13. It is apposite to refer to the decision in the case of M/s. Garment Craft v. Prakash Chand Goel, reported in AIR 2022 SC 422, wherein it is observed in Para-18 as under:
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such Page 10 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023 NEUTRAL CITATION C/SCA/168/2023 ORDER DATED: 21/02/2023 undefined discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."Page 11 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023
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14. In view of the above, this Court is not inclined to exercise its supervisory jurisdiction under Article 227 of the Constitution of India. No error could be said to have been committed by the executing Court by dismissing, more particularly no error of law could be said to have been committed by the Executing Court in rejecting the said Application below Exh-27.
In view thereof, no interference is called for under Article 227 of the Constitution of India. The present petition stands dismissed accordingly.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 12 of 12 Downloaded on : Sun Sep 17 22:05:05 IST 2023