Gujarat High Court
Heirs Of Arjanji Saluji Thakor vs Heirs Of Deceased Thakor Becharji ... on 12 August, 2025
NEUTRAL CITATION
C/CRA/121/2025 JUDGMENT DATED: 12/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 121 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/CIVIL REVISION APPLICATION NO. 121 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
==========================================================
Approved for Reporting Yes No
No
==========================================================
HEIRS OF ARJANJI SALUJI THAKOR & ORS.
Versus
HEIRS OF DECEASED THAKOR BECHARJI BAPUJI & ORS.
==========================================================
Appearance:
HARSH V GAJJAR(7828) for the Applicant(s) No.
1,1.1,1.2,1.2.1,1.2.10,1.2.2,1.2.3,1.2.4,1.2.5,1G67.2.6,1.2.7,1.2.8,1.2.9,1.3,1.
3.1,1.3.2,1.3.3,1.3.4,2,2.1,2.2,2.3,2.4,3,4,4.1,4.2,4.3,4.3.1,4.3.2,4.3.3,4.3.4,4.
3.5,4.3.6,5,5.1,5.2,5.3,5.4,5.5,6,6.1,6.2,6.3,6.4
MR NV GANDHI(1693) for the Opponent(s) No. 1.1
NOTICE SERVED for the Opponent(s) No. 1.2,1.3,1.4
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. With the consent of learned advocates appearing for the respective parties, matter is taken up for final disposal. Hence, Rule returnable forthwith. Mr.Gandhi, learned advocate waives service of notice of Rule on behalf of respondent.
2. The present Civil Revision Application is filed challenging the order dated 18.01.2025, passed below Exh.1, in Execution Petition No.06 of 2018 by 2nd Additional Civil Judge at Kalol, Gandhinagar whereby applicants have been ordered to handover possession of half of the suit Page 1 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025 NEUTRAL CITATION C/CRA/121/2025 JUDGMENT DATED: 12/08/2025 undefined property to the opponent.
3.1 The Civil Suit no.3 of 1980 had been filed by the decree-holder before the Joint Civil Judge (J.D.) Kalol and the trial Court had decreed the suit of the plaintiff with respect to relief of obtaining possession of ½ share from the suit property bearing survey nos.2 and 14 and Block No.1234/3/4/5/6 admeasuring 16 Bighas situated in sim of village of Sherisa, Tal.Kalol. An appeal was preferred before the District Court, Mehsana by the defendant by filing Regular Civil Appeal No.15 of 1992 and by judgment and decree dated 12.10.1992 the District Court quashed and set aside the judgment and decree passed by the trial Court and allowed the said appeal.
3.2 The original plaintiff i.e. decree-holder filed Second Appeal No.5 of 1993 and on 18.10.2012, this Court quashed and set aside the judgment and order passed by the District Court, Mehsana and restored the judgment and decree passed by the trial Court in Regular Civil Suit No.3 of 1980. Thereafter, Civil Miscellaneous Application was filed by the original defendant before the Hon'ble Supreme Court which was filed with delay application and the Apex Court had not condoned the delay and Special Leave Petition was dismissed and in view of the said facts, the decree-holder of Regular Civil Suit No.3 of 1980, filed Execution Petition No.6 of 2018, seeking execution of the decree passed by the trial Court. The present petitioners had filed reply in the said execution proceedings and after considering the said objections, Executing Court passed order dated 18.01.2025, directing the petitioners herein to abide by the decree passed in Regular Civil Suit No.3 of 1980 and to return and handover possession of half of the suit property mentioned at Exh.1 Page 2 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025 NEUTRAL CITATION C/CRA/121/2025 JUDGMENT DATED: 12/08/2025 undefined Para:J after accepting an amount of Rs.671.50 Ps. from the petitioner.
3.3 Aggrieved by the said order, present Revision Application has been filed.
4.1 Learned advocate for the petitioner i.e. original judgment debtor has mainly objected that the order passed by the Executing Court is against the provisions of Order XXI of the Code of Civil Procedure, 1908. Learned advocate for the judgment debtor has also argued that Executing Court has travelled beyond the scope of execution proceedings and beyond the purview of judgment and decree passed by the trial Court and has directed the judgment debtors to handover possession of the property as prayed in para:(J) of the petition, which was neither stated to be suit property nor they were forming part of suit property. It has been argued that Executing Court cannot go beyond the decree, nor can interpret the judgment and decree and, therefore, it has been argued that present revision application is required to be allowed.
4.2 Learned advocate for the judgment debtor has also argued that there was serious dispute of 'identification of suit land' involved in the execution petition and the Executing Court ought to have decided the same as per scheme of provisions contained under Rules 97 to 103 of Order XXI of the Code of Civil Procedure, 1908. Learned advocate has also relied on the judgment reported in the case of Anwarbi vs. Pramod D.A. Joshi & Ors. reported in 2000 (10) SCC 405 4.3 It has also been argued that trial Court could not have allowed execution petition without removal of obstruction as per Rule 97 of Order XXI of Code of Civil Procedure, 1908.
Page 3 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025 NEUTRAL CITATION C/CRA/121/2025 JUDGMENT DATED: 12/08/2025 undefined 4.4 It has also been argued that Executing Court has materially erred in
not taking into consideration that 8 blocks being nos.965 to 969, 971, 976 and 977 altogether admeasured 22.38 Bighas of land were sought in Para:
(J) of Execution Petition, whereas the judgment and decree passed by the trial Court in Regular Civil Suit No. 3 of 1980 states that out of 16 Bighas of suit property, ½ Bigha has to be handed over to the decree holder and by passing the impugned order, the Executing Court has ordered possession of ½ share of 22.38 Bighas of land and, therefore, Executing Court has exercised powers beyond decree. In view of the aforesaid, it has been argued that present Civil Revision Application is required to be allowed.
5. Per contra, learned advocate for the judgment creditor has mainly argued that multiple proceedings have taken place upto the Hon'ble Apex Court and the judgment and decree passed by the trial Court in Regular Civil Suit No.3 of 1980 has been confirmed. It has also been argued that at page:7 of the trial Court judgment, properties have been clearly mentioned by the Court in the year 1992 itself and with respect to identification of the suit property, the decree holder had produced various revenue records and as per the revenue record Block No.1234 has been given new block i.e. 1234/ aa which was given Block / Survey No.971, 1234 /ba given Block / Survey No.976, 1234 /k given Block / Survey No.977 and 1234 /da given Block / Survey No.969. With respect to Survey No.3, there is new Block No.968 whereas Block / Survey No. 4 given new survey / block no.967, Survey No.5 given new survey / block no.965 and Survey No.6 has been given new survey / block no.966. Moreover, it has been argued that judgment debtor has not taken objection to survey no.2/14 and the judgment debtor himself in his Page 4 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025 NEUTRAL CITATION C/CRA/121/2025 JUDGMENT DATED: 12/08/2025 undefined defense has admitted the fact of new numbers for Block / survey nos.1234/a/b/k/d. Moreover, even as per the calculation of above-referred survey numbers' measurement, it is as per the judgment and decree passed by the trial Court and, therefore, Executing Court has rightly passed an order dated 18.01.2025 and the same does not require to be interfered.
6. Having heard learned advocates for the parties and having considered the judgment and decree passed by the trial Court in Regular Civil Suit No.3 of 1980 dated 21.03.1992 and considering the Execution Petition and the order passed by the Executing Court dated 18.01.2025, the fact remains that there is no dispute with respect to re-numbering of the survey numbers. The decree holder has given details by producing revenue record which are produced with the list at Exh.34 and from the said revenue records, it can be clearly established that all the suit properties were in the name of judgment debtor or ancestor of judgment debtor. Moreover, if the decree passed in Regular Civil Suit No.3 of 1980 is taken into consideration, at page:7 of the judgment, the Court has clearly held that after accepting mortgage amount the judgment debtor shall given half of the total amount i.e. Rs.671.50 ps.
7. Moreover fact remains that neither any obstruction application is filed by judgment debtor and only objection which has been filed by the judgment debtor has been considered by the Executing Court. In the present case, the judgment debtor has not filed any obstruction application under Order XXI Rule 101 of the CPC and, therefore, in view of the same since no obstruction application has been filed, the question of challenging the order dated 18.01.2025, does not arise.
Page 5 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025 NEUTRAL CITATION C/CRA/121/2025 JUDGMENT DATED: 12/08/2025 undefined
8. Moreover, the only dispute that the judgment debtor has is with respect to the fact that the trial Court had only granted ½ share of 16 Bighas and the relief that has been granted by the Executing Court is with respect to the 22.34 Bighas but the said fact has been explained by decree holder in view of the said fact that trial Court has granted 1/2 share after receiving an amount of Rs.671.50 ps, the order passed by the Executing Court is as per law and does not require any interference and, therefore, the judgment that has been relied upon by learned advocate for the judgment debtor i.e. in the case of Anwarbi vs. Pramod D.A. Joshi & Ors. reported in 2000 (10) SCC 405 wherein the Apex Court has held that where there is any obstruction to execution of decree for possession, it was for the decree holder to take appropriate steps under Order XXI Rule 97 for removal of obstruction and to have the rights of the parties including obstructionist adjudicated in appropriate proceedings.
9. In the present case, no obstruction application has been filed by the judgment debtor on the ground that he is in possession of the property and in view of the fact that there was no obstruction application with respect to the possession of the property, the executing court has rightly passed the order dated 18.01.2025.
10. For the above reasons and discussions, the present Civil Revision Application is dismissed. Rule is discharged. No order as to costs.
(SANJEEV J.THAKER,J)
11. After the pronouncement of the judgment, learned advocate for the petitioner prays this Court for stay of operation and implementation of Page 6 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025 NEUTRAL CITATION C/CRA/121/2025 JUDGMENT DATED: 12/08/2025 undefined this order with a view to challenge this judgment. Request is acceded to. Stay of this order is granted upto three weeks.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 7 of 7 Uploaded by MISHRA AMIT V.(HC00187) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:43 IST 2025