Gujarat High Court
Legal Hairs Of Koli Kanjibhai ... vs Legal Heirs Of Koli Bavbhai Nathubhai on 20 March, 2025
NEUTRAL CITATION
C/SCA/7686/2023 ORDER DATED: 20/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7686 of 2023
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LEGAL HAIRS OF KOLI KANJIBHAI RAMSHIBHAI RATHOD & ORS.
Versus
LEGAL HEIRS OF KOLI BAVBHAI NATHUBHAI & ORS.
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Appearance:
MR PJ KANABAR(1416) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7,3,3.1,3.2,3.3,3.4,3.5,3.6,3.7,
4
MR. HRIDAY BUCH, ADV. WITH MOKSHAY R VYAS(7453) for the
Respondent(s) No. 1.2,1.3,2.1,3,4,5
UNSERVED EXPIRED (N) for the Respondent(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 20/03/2025
ORAL ORDER
The present writ application is filed under Article 227 of the Constitution of India by writ applicants being successor of original plaintiffs seeking the following reliefs :
"B. Your Lordships may be pleased to issue writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari quashing and setting aside the impugned order dated 16.03.2020 passed in Civil Misc. Application No. 1 of 2019, passed by the learned Judge, Principal Civil Judge, Jafrabad, and may further be pleased to allow the application as prayed with costs all throughout in the facts and circumstances of the case and in the interest of justice.
C. Pending admission, hearing and final disposal of this petition your Lordships may be pleased to restrain the respondents from transferring and/or alienating in any manner the agricultural land/s situated in the sim of village Jafrabad, District-Amreli, bearing revenue S.No.65/1 Acre 03-03 Guntha, S. No. 182/1 Acre 6-37 Gunthas and S.No. 143/1 Acre 2.09 pending admission, hearing and final disposal of this petition to meet the ends of justice."Page 1 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025
NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined 1.1 As far as possible, the parties are addressed as per their original position in the suit /execution proceedings.
2. The short facts of the case appear to be are that the predecessors of present writ applicants had filed partition suit being Regular Civil Suit No. 65 of 1967 before Principal Civil Judge, Rajula which came to be allowed on 31.7.1968, thereby a preliminary decree was passed. The appeal filed by predecessors of respondents who happens to be defendants of said suit came to be dismissed on 30.06.1969. The Second Appeal also came to be dismissed being abated by this court vide its judgment dated 4.12.1973. So, writ applicants are legal heirs of original plaintiffs, whereas respondents are legal heirs of defendants of the suit.
2.1 It appears that the trial court had initially drawn the final decree on 15.04.1976 below Exh. 101, against which the defendants had preferred Regular Civil Appeal No. 48 of 1976 before the District Court, which came to be dismissed, but having observed that so far as the agricultural lands are concerned, after drawing decree, it was ordered to be sent to the District Collector to do the needful for its implementation.
2.2 On remand of the matter, after hearing the parties, below Exh.110, on 30th December 1978, the final decree came to be drawn by the trial court and the order was sent to the Collector, Amreli in relation to actual partition of the agricultural land.
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either by the Collector, thereby the final decree which was sent to the Collector remained as it is or petitioners as the case may be. At the same time, the petitioners/original plaintiffs have also not bothered to initiate any action pursuant to the final decree drawn by the trial court, which was sent it to the Collector for its implementation. It appears that the Collector, Amreli had sent the matter to the Mamlatdar, Jafrabad for doing needful and the Mamlatdar, Jafrabad vide its communication dated 30 th September, 2016 declined the request of the petitioners - original plaintiffs for taking any further steps in regard to the final decree drawn on 30.12.1978. Such communication appears to have been challenged by the petitioners before this Court by way of Special Civil Application No. 299 of 2017 which came to be allowed by learned single Judge of this Court vide its judgment and order dated 28.06.2017. The single Judge of this court has directed the Collector, Amreli to take immediate steps to do the needful in accordance with the decree drawn by the civil court.
2.4 The defendants appears to have carried the matter before the Division Bench of this court by way of LPA No. 1052 of 2017 which came to be allowed vide its judgment and order dated 28.06.2017 whereby, direction issued by the learned single Judge in the aforesaid judgment has been quashed and set aside.
2.5 The petitioners appears to have filed a Review Application in the judgment and order passed by the Division Bench in Letters Page 3 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined Patent Appeal No. 1052 of 2017 and such Review Application also came to be turned down by the Division Bench vide its judgment and order dated 15.03.2018. Nonetheless, the Division Bench has corrected the date mentioned in para 7 of its judgment, but the rest of its judgment was remained unaltered. The petitioners have carried the matter before the Hon'ble Apex Court of India by way of SLP No.(C) 11715-11716 of 2018, which also came to be dismissed.
2.6 Thus, in view of the aforesaid, the judgment and order passed by the Division Bench has been confirmed upto the Hon'ble Supreme Court.
2.7 Having failed before the Division bench of this Court and the before Hon'ble Apex Court, the petitioners have chosen to file impugned Execution Application before the Executing Court at Jafrabad on 18.01.2019 with a prayer to draw final decree in relation to the agricultural lands and also to order for possession of suit property in relation to the house. After hearing the parties at length, executing court vide its impugned order dated 18.03.2020, has rejected the execution application with cost.
2.8 Being aggrieved and dissatisfied with the impugned order dated 18.03.2020 passed by Principal Civil Judge, Jafrabad in Civil Misc. Application 1 of 2019 below Exh.1, petitioners/original plaintiffs preferred the present writ application.
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Submissions of the petitioners-plaintiffs-applicants
3. Learned Counsel Mr. P.J.Kanabar appearing for the petitioners/original plaintiffs would submit that trial court has committed jurisdictional error by not allowing the impugned application filed by the petitioners, thereby committed serious error of law. Learned counsel Mr. Kanabar would further submit that the petitioners are the decree holders, who are deprived from the fruits of the decree and due to technical reasons, they are unable to enjoy the fruits of the decree which has been passed way back in the year 1968. Learned counsel Mr. Kanabar would further submit that the trial court has wrongly observed that the final decree was passed on 30.12.1978, thereby erroneously rejected execution application having considered it as time barred. Learned counsel Mr. Kananbar would submit that as such no final decree was passed on 30.12.1978 in regards to the agricultural lands-in-question, as nothing has been done by the Collector despite civil court has sent the decree for its implementation.
3.1 Learned counsel Mr. Kanabar would further submit that considering the provisions of section 54 of the Civil Procedure Code, 1908 (hereinafter referred to as 'the CPC'), it was incumbent upon the Collector to actually divide the agricultural lands in metes and bounds and having failed to do it, request made by the petitioners ought to have been accepted by the trial court. Learned counsel Mr. Kanabar would submit that when decree which has been drawn by the civil court was remained pending for its Page 5 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined implementation at the end of the revenue officers, no fault can be found with the petitioners and period of limitation would not begin to run. Learned counsel Mr. Kananbar would submit that in the interests of justice this court may exercise its extraordinary powers thereby to redirect the Collector/Mamlatdar concerned to implement the decree drawn by the civil court on 30.12.1978.
3.2 Making the submissions as above, the learned advocate for the petitioners prays that the present petition be allowed.
3.3 In support of his submissions, the learned advocate for the petitioners has relied on the following decisions :
(i) Rana Ramanlal vs. Rana Chunilal (1977 GLR 118, paras 1,5,7 and 8 to 11).
(ii) Sangar Gagu vs. Sangar Abhram (1977 GLR 257, paras 1,2,6,7 and 11).
(iii) Venu vs. Ponnusamy [2017 (0) AIJEL-SC 60371, paras 1,4,5 to 7].
(iv) H.T.Chandrasekharappa vs. H.R.Raja [ JT 1987 (3) SC 6701, paras 1 and 2].
(v) Chintaman vs. Shankar [1999 (1) SCC 76, paras 3 and 4 to 9].
(vi) Ravatsinh v/s. V.S.Sinha [2001 (1) GLH 764, paras 1,2,8, 9 to 17].
(vii) Bikoba vs. Hirabai [(2008) 8 SCC 198, paras 2, 4-14].
(viii) Subh Karan vs. Sita Saran [(2009) 9 SCC 689, paras 1 to 4, 8, 9 to 22 and 23-30].Page 6 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025
NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined
(ix) Ganduri vs. Chakiri [(2011) 9 SCC 788, paras 2, 14, 15-17 and 19-21]
(x) Bimal Kumar vs. Shakuntala Devi [(2012) 3 SCC 548, paras 3, 12, 18 and 22-30].
(xi) Kattukandi vs. Kattukandi [2022 (o) AIJEL-SC 69433, paras 1,5, 28-32].
(xii) Kaikhosrou vs. UOI [(2019) 20 SCC 705, paras 1,73,74,75 and 82].
(xiii) P. Singaravelan vs. District Collector [(2020) 3 SCC 133, paras 2,7 and 8],
(xiv) Central Board of Dawoodi Vohra vs. State of Maharashtra [(2005) 2 SCC 673, paras 1, 12-14].
(xv) The recent decision of the Hon'ble Supreme Court in Abdul Rejak Laskar vs. Mafizur Rehman ( 2024 INSC 1023) for its paragraph Nos. 13 to 17.
Submission of the respondents - defendants - opponents:
4. Learned counsel Mr. Nirad Buch with learned advocate Mr. Mokshay Vyas has vehemently opposed the present writ application contending inter alia that the impugned application as well as present application is nothing but abuse of process of law and there is no error committed by the trial court while rejecting the impugned application. Learned counsel Mr. Buch would further submit that trial court has already passed final decree on 30.12.1978 which was never executed by the petitioners by filling an appropriate execution petition within a period of limitation i.e. Page 7 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined 12 years as prescribed under Article 136 of Limitation Act, and therefore, no error can be found in the impugned order. Learned counsel Mr. Buch would further submit that at given point of time, petitioners have approached this court by way of SCA No. 299 of 2017, but order of learned single judge has been quashed and set aside by the Division Bench of this court in LPA No. 1052 of 2017, which is confirmed by the Hon'ble Supreme Court and therefore, nothing remains in the matter.
4.1 Learned counsel Mr. Buch would further submit that noticing the entire contour of the proceedings which were initiated by the petitioners and having came to a definite conclusion that final decree was drawn on 30.12.1978, trial court has correctly rejected the impugned execution application filed after about more than 40 years, which is hopelessly time barred. Learned counsel Mr. Buch would submit that the petitioners could have filed execution application either before the trial court and/or pursued a remedy available under law before the Collector/Mamlatdar within period of limitation but having not done so, now at this stage, petitioners cannot request the trial court to either draw again final decree or request for issuance of warrant of possession of house which was subject matter of the suit, as impugned application is hopelessly time barred. Learned counsel Mr. Buch would further submit that when the equity is pitted against law, it is settled proposition that law will prevail over the equity. So Learned counsel Mr. Buch would request this court not to entertain the present writ application, thereby urge that this court may not exercise its powers Page 8 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined under Article 227 of the Constitution of India.
4.2 Making the above submissions, learned advocate for the respondent requests that the petition be dismissed with costs.
4.3 Learned counsel Mr. Buch would relied upon the decision of the Hon'ble Supreme Court in Abdul Rejak Laskar (supra) for its paragraph Nos. 49 to 51.
Analysis
5. The short question which falls for my consideration is as to whether the impugned execution application filed by the petitioners, is filed after period of limitation so prescribed under Article 136 of Limitation Act or not ?
6. At the outset, I would like to remind myself and required to take note of the ratio of the following decisions of the Honourable Supreme Court:
(1) Sameer Suresh Gupta TRPA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein the law has been summarized thereby the scope of the power of the High Court while exercising its power under Article 227 of the Constitution of India has been elaborated. The relevant observation of the aforesaid judgment reads as under:-Page 9 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025
NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined "[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact Page 10 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ Page 11 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
[7]. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
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(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on Page 13 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
(2) Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [ Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] 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 Page 14 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, 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. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 :
(2010) 1 SCC (Civ) 69] 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 discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101- 102, para 6) "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 Page 15 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined 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."
7. The trial court after taking note of the entire history of previous litigation more particularly judgment/order passed by the Division Bench of this court in LPA, which is confirmed by the Hon'ble Supreme Court and having found that final decree was already passed on 30.12.1978, it has found that impugned execution application is hopelessly time barred and thereby, it has rejected it. To appreciate the submissions made by Mr. Kanabar, I have also gone through decree drawn by the trial court on 30.12.1978 below Ex. 110 wherein it has been clearly stated on internal page No. 4 of said decree that "after hearing the learned advocate for the parties, order was passed under decree below Exh. 100 and as per said order, accordingly final decree is drawn."
8. It further appears that the trial court has also sent such final decree to District Collector, Amreli for its doing needful. Thus, final decree is already passed by the trial court in the matter. The petitioners by way of impugned application has again requested the trial court to draw the final decree which is a misconceived attempt on the part of the petitioners and the same appears to have been attempted to overcome rigorous of the provisions of limitation act.
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9. It is profitable to refer to Article 136 of the Limitation Act, 1963, reads as under:
"Article 136.
Where the decree or order becomes enforceable For the or where the decree or any subsequent order execution of any directs any payment of money or the delivery of decree (other any property to be made at a certain date of at than a decree 12 recurring periods, when default in making the "136. granting a years payment or deliver yin respect of which execution mandatory is sought, takes place, provided that an application injunction) or for the enforcement or execution of a decree order of any civil granting a perpetual injunction shall not be court.
subject to any period of limitation."
9.1 As per the provisions of Article 136 of the Act 1963, the decree holder is required to apply for execution within a period of 12 years from the date of the decree. Whereas in the present case, the petitioners have filed the impugned execution application after about 40 years from the date of the final decree, which is hopelessly time barred. Thus, no error can be found with the impugned order.
10. So far as submission of learned counsel Mr. Kanabar that petitioners are deprived of the fruits of decreed due to technicalities meted against the petitioners in earlier round of litigation is concerned, once the petitioners having lost before the Division Bench thereby order of learned single Judge of this court directing Collector to do the needful for implementation of the decree is quashed and set aside, and such judgment of the Division Bench is Page 17 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined even confirmed by the Hon'ble Supreme Court, nothing further can be done in the matter.
11. It apposite to refer to few observations made by the Division Bench of this Court in ts judgment dated 28.12.2017 passed in LPA No. 1052 of 2017, wherein it has been observed asunder, "18. Further, it is clear that the equity can only supplement the law but it cannot supplant or overwrite it. When there is a conflict between law and equity, it is the law which has to prevail. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. If a party is thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
19. In the case of Shub Karan Bubna alias Shub Karan Prasad Bubna (supra), the suit was decreed on 25.2.1964 directing a preliminary decree for partition to be drawn in regard to the 1/3rd share of the plaintiffs in the plots and final decree to be drawn up through the appointment of Commissioner for actual division of the plot by metes and bounds. The application was filed on 1.5.1987 for drawing up a final decree and the opposite party filed an application in the year 1991 for dropping the final decree proceedings as it was barred by limitation. Ultimately, the proceedings went up to the Hon'ble Supreme Court. The Hon'ble Supreme Court, after considering the provisions of the CPC and Limitation Act, observed and held that every applicant who seeks to enforce a right or seeks a remedy or relief on the basis of any cause of action in a civil Court, unless otherwise provided, will be subject to the law of limitation. But where an applicant does not invoke the jurisdiction of the Court to grant any fresh relief based on a new cause of action but merely reminds or requests the Court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation. Thus, in the facts of the present case, the aforesaid decision would not render any assistance to the present respondents-original Page 18 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined petitioners.
20. Similarly, in the case of Bikoba Deora Gaikwad and others (supra), the question before the Hon'ble Supreme Court was whether an application for initiating final decree proceedings in terms of Section 54 of CPC would be governed by any provision contained in the schedule appended to the Limitation Act, 1963. The Hon'ble Supreme Court held that when an application for initiating final decree proceedings in terms of the aforesaid section is filed, provisions of Articles 136 and 137 of the Limitation Act will have no application. In the present case, as discussed hereinabove, the final decree was already passed on 30.12.1978 and thereafter the application was submitted before the Mamlatdar after a period of more than 39 years and therefore in the facts of the present case, the aforesaid decision would also not render any assistance to the original petitioners. Similarly, reliance placed on the decision rendered by the Hon'ble Supreme Court in the case of Chintaman (supra) is also misconceived.
21. In the facts and circumstances of the present case, as discussed hereinabove, the preliminary decree was passed by the concerned civil Court on 31.7.1968. The said preliminary decree came to challenged by the original defendant by preferring Regular Civil Appeal No.59 of 1968 before the District Court and the said appeal came to be dismissed by the appellate Court on 30.6.1969 against which the Second Appeal No.703 of 1969 was preferred before this Court which was also dismissed by this Court by order dated 4.12.1973. Thereafter, the final decree of partition came to be passed on 30.12.1978. At this stage, it is required to be noted that the petitioners thereafter requested the concerned civil Court to execute a preliminary decree and therefore the civil Judge pointed an advocate as Court Commissioner to effect the partition. However, the said Commissioner thereafter retired as Court Commissioner and therefore one Mr.P.D.Ghanchi was appointed as Court Commissioner to effect the actual partition of the property in question. The said Court Commissioner also declined to proceed further as Court Commissioner. Thereafter, the final decree dated 30.12.1978 was passed by the concerned Court. Thus, the decision rendered by the Hon'ble Supreme Court in the case of Venu (supra) would not render any assistance to learned advocate Mr.Kanabar. In the said case, the Hon'ble Supreme Court has held that a preliminary decree for partition crystallizes the rights of the parties for seeking partition to the extent declared, the equities remain to be worked out in final decree proceedings and till partition is carried out and final decree is passed, there is no question of limitation running against right to claim partition as per preliminary decree. No limitation is prescribed for this purpose and therefore it would not be barred by limitation. However, as observed hereinabove, in the present case, the final decree was passed on 30.12.1978 and till date, no execution proceedings are filed by the petitioners before the Page 19 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined competent civil Court. Instead, the petitioners have submitted an application before the Mamlatdar for execution of the said decree. In our view, the said application itself is misconceived. We are of the view that once the final decree is passed by the competent civil Court which has attained finality, the petitioners have to approach before the competent civil Court for execution of the said final decree within the prescribed period of limitation. The Collector is not empowered to execute the final decree and therefore the submissions canvassed by learned advocate Mr.Kanabar is misconceived.
22. In the present case, as observed hereinabove, the suit for partition was filed by the petitioners with regard to agricultural land as well as for three houses situated at Jafrabad, the description of which is given in the final decree produced at page 29-A of the compilation. In view of the above, no direction can be given to the Collector to execute a final decree passed by the civil Court and that too after a period of more than 39 years. The petitioners have not tendered any explanation for not filing execution application before the competent civil Court or for not submitting the application before the Mamlatdar within reasonable time. At this belated stage, after a period of 39 years, the application is filed before the Mamlatdar for execution of the final decree passed by the competent civil Court.
23. In view of the foregoing discussion, this appeal is allowed. The order dated 28.6.2017 passed by the learned Single Judge in Special Civil Application No.299 of 2017 is set aside. Consequently, Civil Application stands disposed off."
12. There is no cavil that whenever an agricultural land is subject matter of partition suit, once trial court passed a preliminary decree, further steps to be undertaken by the revenue officer as per section 54 of CPC. Section 54 of CPC reads as undertakes "54. Partition of estate or separation of share:- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separation possession of a share of such an estate the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."
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13. Learned advocate Mr. Kanabar have relied upon several decisions as referred herein above but none of such decisions would be helpful to the case of petitioners because of the fact that in earlier round of litigation, Division Bench has after considering submissions of petitioners have rejected their arguments for execution of decree by Collector. Now, in view of recent decision in the case of Abdul Rejak Laskar (supra) thereby learned advocate Mr. Kanabar would contended that in view of recent position of law, final decree requires to be drawn by trial Court and then after, collector is required to take appropriate steps. The ratio of the decision in the case of Abdul Rejak Laskar (supra) would not be ipso facto apply to the case on hand because prior to judgment of Hon'ble Supreme Court in Abdul Rejak Laskar (supra), petitioners have lost in their attempt for implementation of final decree by Collector/Mamlatdar as the Division Bench has allowed the appeal of the respondents which is confirmed upto the Hon'ble Apex Court thereby, direction which was issued by the single judge to Collector/Mamlatdar for doing needful in connection with final decree drawn by the trial court on 30-12-1978 has been quashed and set aside. It is settled legal position of law that any subsequent pronouncement of law by Hon'ble Supreme Court would not ipso facto apply between the parties if they their disputes have been already decided by the highest court prior to such pronouncement of law. [see State (NCT of Delhi) vs. K.L. Rathi Steels Ltds. reported in (2023) 9 SCC 757].
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14. At this stage, it would be profitable to refer to the pertinent observations and law declared by Hon'ble SC in the cased of Abdul Rejak Laskar (Supra) wherein para 47, 49 and 51, observed as under:
"47. In regard to estates assessed to payment of revenue to the govern- ment (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in re- gard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of CPC. If the Collector takes action in the decree appropriately, the matter will not come back to the court and the court will not have to interfere in the partition, except attending any complaint of an affected third party. While making the partition the Collector is bound by decla- ration of the rights of the parties in the preliminary decree. But the Court has no power to fetter the discretion of the Collector conferred under the law. However, in regard to any issue on which the Collector is not competent to decide, the civil court will have the power to dispose of. If the Collector disregards the terms of the decree, the Court is entitled to refer the case back to the Collector to re-partition the property. The Collector must actually divide the estate in the manner he thinks best keeping in mind the nature of the land as revenue paying entity and the stip- ulations of the decree. The object of this provision is two-fold:
a. First, the revenue authorities are more conversant and better equipped to deal with such matters than a civil court, and;
b. Secondly, the interest of the government in regard to the revenue paying estate would be better safeguarded by the Collector than by the civil court. [49] A final decree is one which completely disposes of the suit and finally settles all the questions in controversy between the parties and nothing further remains to be decided thereafter. A preliminary decree in a partition suit merely determines and declares the rights of the parties in the properties and the extent to which they are entitled. It is the final decree which ultimately divides the properties by metes and bounds and awards separate possession of the properties to the claimants. The function of the final decree is to restate and apply what the preliminary decree has ordered. A final decree is thus based upon and controlled by preliminary decree. It is settled legal position that final decree proceedings are in continuation of preliminary decree proceedings and there is no executable decree unless the final decree is passed. The final decree does not originate itself, but flows from preliminary decree already passed in a suit determining and declaring the rights and interests of the parties in the suit. The final decree is not a decree in execution of preliminary Page 22 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined decree but decree in a suit. It is the final decree which is to be enforced.
[51] In the aforesaid context, we looked into one very lucid decision of the High Court of Karnataka in the case of Ramagouda Rudregouda Patil v. Lagmavva,1984 SCCOnline(Kar) 192 explaining the true purport and scope of Section 54 of the CPC read with Order XX Rule 18 of the CPC. We may quote the relevant observations:
"7. It is now a well settled principle of law that in the case of the execution of the decrees pertaining to partition and separate possession of agricultural lands assessed to Revenue, the Civil Court only declares the shares of the parties and the authority concerned has to effect partition or division by metes and bounds, as envisaged by Section 54 of C.P.C. Collector is the authority concerned to effect partition.
Once the papers were sent to the collector, the Civil Court has no control over the proceedings taken by the Collector. The Civil Court cannot direct the Collector to effect partition in a particular manner after the papers were sent to him. Therefore, Section 54 C.P.C. makes it absolutely clear that the execution is not at all contemplated in the case of decrees for partition and division of agricultural lands. What the Civil Court has to do is to transmit the papers to the Collector for actual partition and possession. Therefore, all Execution Petitions are to be filed in the Civil Courts requesting the Court to transmit the papers to the Collector for partition and possession of agricultural lands. They are not, in any sense of the term, execution petitions. They are only in the form of a request to the Court to do its duty as enjoined on it by Section 54 C.P.C. Therefore, the lower Appellate Court rightly held that the execution petitions filed in such cases are only requests or reminders to the Court to send the papers to the Collector to effect the partition.
xxx xxx xxx
10. Under Section 54 and Order 20 Rule 18 C.P.C. the only duty of the Collector, now called as the Deputy Commissioner, is to effect partition or division by metes and bounds in accordance with law if any for the time being in force, relating to partition or separate possession of shares of such estate. The word 'partition' used in Section 54 or Order 20 Rule 18, in my opinion, means that the partition is not confined to mere division of the lands concerned into the requisite parts, but also includes the delivery of shares to the respective allottees. To elaborate further, the word 'partition' means actual division or partition by metes and bounds and handing over possession of the shares to the parties.
11. As an instance of law relating to partition one will have to refer to the provisions of the Prevention of Fragmentation and Consolidation of Holdings Act and the Land Revenue Act Page 23 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined and the Rules. If the Collector thinks that actual division by metes and bounds is not possible on account of the provisions of the Prevention of Fragmentation and Consolidation of Holdings Act, he will have to follow the procedure laid down by the Act in such cases. In fact the Prevention of Fragmentation and Consolidation of Holdings Act, lays down procedure in such cases. Therefore, this is the law within the meaning of Section 54 C.P.C. relating to partition or separate possession of shares. The law relating to partition in Section 54 or Order 20 Rule 18 C.P.C. does not refer to the nature of the property to be divided. Therefore, Section 54 C.P.C., in my opinion, does not enable the Deputy Commissioner, to decide the question as to whether the agricultural land in question is impartible or partible. That is the duty of the Civil Court and not of the Deputy Commissioner.
12. This Court, in the decision in Ramachandra Srinivasa Kulkarni v. Ramakrishna Krishna Kulkarni, 1967 1 MYSLJ 97 has clearly stated:
"But the order made by the Collector in the case before us concerned itself with an objection to the partition which was directed by the Civil Court. That objection has been raised before the Executing Court and had been over-ruled. An appeal from that order had also been dismissed. All that the Collector had, therefore, to do was to proceed to make a partition and, it was entirely beyond his competence when making a partition under Section 57 of the Code of Civil Procedure, to listen to an objection which had been repelled by the Civil Court which had the competence to adjudicate upon it."
Hence, it is clear that it is not within the jurisdiction of the Deputy Commissioner to consider the question as to whether the lands are partible or impartible. That is the sole and exclusive jurisdiction of the Civil Courts. The nature of the property viz. whether it is partible or impartible, is not covered by the phrase 'the law for the time being in force, relating to partition' as occurring in Section 54 C.P.C. Therefore, the order passed by the Collector in the previous execution that the lands being sanadi lands could not be partitioned, is also without jurisdiction. It is a nullity in the eye of law. There is no necessity to go in revision or appeal against such an order. That is also the view taken by this Court in Ramachandra's case [1967 (1) Mys. L.J. 97.]. Therefore, the argument of Learned Counsel Sri Ujjannavar that the order of the Collector in the previous execution having not been challenged, barred the present execution petition, cannot be accepted at all.
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15. Sri Ujjannavar then urged that a decree passed in a partition suit was not a preliminary decree and it amounts to saying that the decree has become final. It is no doubt true that it has been held by this Court in the decision in Ganapatrao Raojirao Desai v. Balvant Krishnaji Desai,1965 2 MysLJ 768 that:
"A decree passed under R. 18(1) of Or. XX directing partition by the Collector cannot be said to be a preliminary decree. So far as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector."
The purport of the said expression used by this Court is that though it cannot be said to be a preliminary decree, it became final for all purposes so far as the Civil Courts are concerned. Once a decree declaring the shares of the parties is passed by the Civil Court, it has nothing more to do. It means that the case has come to an end in the Civil Court and it does not amount a final decree. Therefore, it cannot be considered to be a final decree as understood in the Civil Procedure Code. Therefore, the argument of Learned Counsel Sri Ujjannavar that in the case of a final decree the limitation would begin to run, holds no substance and it is rejected."
(Emphasis supplied)
15. The petitioners having failed in earlier round of litigation thereby unable to persuade the Court for implementation of final decree by Collector/Mamlatdar, again by way of impugned execution application can not be permitted to reopen the close chapter.
16. Thus, examining the matter from any angle, the impugned execution application so filed by the petitioners after about 40 years from passing of the final decree, is hopelessly time barred. At the relevant point of time having not pursued their remedy in time Page 25 of 26 Uploaded by C.M. JOSHI(HC01073) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:40:22 IST 2025 NEUTRAL CITATION C/SCA/7686/2023 ORDER DATED: 20/03/2025 undefined either before the trial court and or before the revenue authorities, and later on remained unsuccessful to get direction from this Court and Hon'ble Supreme Court thereby no direction was passed to the revenue authorities for implementation of final decree dated 30.12.1978, now at this stage, the petitioners cannot reopen the close chapter by way of impugned execution application. According to my view, the petitioners have abused the process of law by filling the impugned application, which is correctly rejected by the trial court with cost.
Conclusion.
17. Thus, there is neither any gross error of law nor any jurisdictional error committed by the executing court/trial court while rejecting the impugned execution application which is filed beyond period of limitation. In view of the aforesaid facts and ratio of Sameer Suresh Gupta TRPA Holder (supra), Garment Craft (supra), I do not find any merit in the present writ application which is required to be rejected. The same is hereby rejected. Notice discharged. No costs.
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