Gujarat High Court
Gangaben Ishwarlal Bhagat vs Somabhai Maganbhai And Ors. on 12 January, 1996
Equivalent citations: (1996)3GLR76
JUDGMENT S.D. Shah, J.
1. This First Appeal was admitted by N.J. Pandya, J. on 7th July, 1995. It is directed against the order passed below Obstruction Application No. 154 of 1993 and Obstruction Removal Application No. 7 of 1994. The impugned order is passed by the Civil Judge (S.D.), Surat dated 27-4-1995 whereby the executing Court has rejected prayer for injunction against execution of warrant for possession. In this Court the appellant has obtained ex-parte stay of such order by filing C.A. No. 2329 of 1995. The original auction-purchasers as well as decree-holders have filed C.A. No. 5781 of 1995 for vacating such ex-parte order. By order passed on 12-12-1995 on C.A. No. 5781 of 1995 the final hearing of this F.A. was fixed with consent of rival parties and the preparation of paper-book was dispensed with. The First Appeal was thereafter heard finally and is being disposed of by this judgment.
2. One Gangaben Ishwarlal Bhagat who happens to be the daughter of one Benkorben and sister of Kantilal has filed the present appeal against the common order passed by the executing Court on 27-4-1995 in Misc. Application No. 7 of 1994. By well reasoned order the Misc. Application No. 154 of 1993 preferred by Gangaben and the application for removal of obstruction being No. 7 of 1994 filed by respondents No. 1 and 2 arc directed to proceed further and for injunction against execution of warrant for possession is rejected and order for issuance of warrant for possession is passed in Misc. Application No. 55 of 1983 dated 9-1-1984 be proceeded with and possession of the suit property is directed to be handed over to the said respondents.
3. Facts giving rise to the present appeal are very complex and are required to be stated in brief hereunder:
(i) It appears that one Chhabildas Narottam and Kashiben Chhabildas, husband and wife executed a gift deed, dated 15-5-1961 in favour of their three daughters, namely, (i) Jethiben, (ii) Benkorben and (iii) Daykorben.
(ii) One of the daughters, i.e., Jethiben, thereafter, filed Special Civil Suit No. 163 of 1979 in the Court of Civil Judge (S.D.) for partition of the said house by metes and bounds and for possession of her ] /3rd share in the said house.
(iii) On 20th August, 1981 the preliminary decree for partition was passed in the said suit upholding 1 /3rd share of each daughter.
(iv) On 15-4-1983 final decree was passed in said suit. However, it may be noted that before the final decree could be passed said Jethiben expired and Somabhai and Daykorben - present respondents No. 1 and 2 were impleaded as heirs and legal representatives of Jethiben. Therefore, on the date on which final decree came to be passed both Somabhai and Daykorben were parties to the proceedings.
(v) It appears that thereafter the execution petition was filed for partition of the property by metes and bounds, but the Court Commissioner found that it was not possible to partition residential house into three portions, and therefore, the executing Court directed that the property in question be sold by public auction and sale proceeds thereof be equally distributed amongst three daughters. It also permitted the parties to participate in public auction.
(vi) In the year 1983 during the auction, Somabhai Maganbhai and Daykorben Ranchhodbhai also participated as heirs and legal representatives of deceased Jethiben and Daykorben was also otherwise co-sharer having l/3rd share and their offer being the highest for an amount of Rs. 33,000/- the same was accepted and the sale was confirmed by the executing Court. It may be stated that in all the proceedings upto the auction of the property and confirmation of sale, Benkorben and Daykorben were the parties to the proceedings as they were parties in the Special Civil Suit No. 163 of 1979. It would not be out of place to state at this stage that the present appellant-Gangaben is the daughter of said Benkorben and the present respondent No. 5 Kantilal is the son of said Benkorben.
(vii) Thereafter, auction purchasers being respondents No. 1 and 2 herein deposited the balance auction amount of 2/3rd share in the executing Court on 9-2-1993 and 23-2-1983. On deposit of said amount, since the auction- purchasers were themselves the sharers as per the final decree of participation, their 1 /3rd share was already satisfied and on deposit of balance amount of 2/3rd share the decree was satisfied and hence the\ became entitled to be put into possession of the entire suit property.
(viii) The auction-purchasers thereafter filed Kirkul Application No. 55 of 1983, dated 16-9- 1983 for giving over to them the possession of the property purchased by them and the executing Court had passed the order, dated 9-1-1994 for issuing warrant for possession of the property in question. At that time, Benkorben who happens to be the mother of the present appellant-Gangaben was alive and she was impleaded as party in the said proceedings for possession. She, however, did not take any steps against the issuance of warrant for possession nor did she object to execution of warrant for possession.
(ix) When the warrant for possession was sought to be executed the son of Benkorben and the brother of the present appellant, namely, Kantilal-respondent No. 5 in the appeal objected and refused to hand over the possession and filed obstruction application. The auction-purchasers, thereupon, filed application for removal of objection being application No. 9 of 1984 and after proper enquiry and providing sufficient opportunity to the obstructionist-Kantilal the executing Court granted the Application for removal of obstruction by its judgment and order, dated 24-12-1989 and the application filed by Kantilal for obstruction was rejected. It may be stated that in his obstruction application it was the case of Kantilal that he was the tenant of the premises. His mother, namely, Benkorben was co-sharer and was held to be entitled to 1 /3rd share in the final decree passed in partition suit. She did not claim any tenancy right in the suit premises and his son Kantilal, therefore, failed in making good his case that he was the tenant of the suit premises. His mother through whom being her heir he was claiming tenancy was in fact the co-sharer.
(x) It may be stated that when the aforesaid Kirkul Application No. 53 of 1983 was pending. Benkorben, the mother of Gangaben and Kantilal expired on 26th July, 1984 and Gangaben -- the present appellant and Kantilal -- present opponent No. 5 were impleaded as heirs and legal representatives of aforesaid Benkorben in the said proceedings.
(xi) Being aggrieved by the judgment and order of the executing Court dated 24-12-1989 ordering removal of obstruction filed by Kantilal, said Kantilal and present appellant-Gangaben preferred Civil Appeal No. 30 of 1990 in the District Court at Surat. Therein he applied for stay of further execution proceedings which was not granted by the District Court. The present respondent No. 5 Kantilal thereupon preferred First Appeal No. 512 of 1992 in this Court and in such proceedings also present appellant-Gangaben was impleaded as party. Said First Appeal was rejected by this Court on 2nd July, 1992, and at that time, Kantilal requested this Court to grant some time to vacate the premises and it was granted by this Court upto 31st March, 1993. It is thus clear that the son of deceased Benkorben and the brother of present appellant-Gangaben being Kantilal-respondent No. 5 herein put forward his claim of tenancy by filing his obstruction application which claim was thoroughly investigated and was rejected and he lost in appeal upto this Court. All throughout the proceedings the present appellant-Gangaben who happens to be real sister of said Kantilal was party to the proceeding and she did not file any obstruction nor did she put forward her claim of tenancy in the suit property. She also did not claim any right independent to her status as heir and legal representative of deceased Benkorben nor did she claim to be in possession of the suit house naturally because after her marriage she was residing with her husband.
(xii) Having failed to illegally and unauthorisedly stick to the possession of the suit property upto the High Court, the present appellant-Gangaben who is the real sister of Kantilal instituted Regular Civil Suit No. 276 of 1993 in the Court of Civil Judge (S.D.) at Surat claiming that her late mother had l/3rd share in the suit property and that she, therefore, has 1 9th share in the said property. She further claimed that she was not bound by the decree passed in the earlier suit for partition. It may be noted that such suit was filed by present appellant-Gangaben on 17-3-1993, i.e.. 13 days before the expiry of the period granted by this Court as Kantilal was required to vacate the suit premises by 31-3-1993.
(xiii) In such suit the present appellant-Gangaben also applied for ex-parte injunction against execution of possession warrant which was issued by the executing Court in execution proceedings and ex-parte injunction was granted by Civil Judge (S.D.), Surat.
(xiv) However, after hearing and considering the reply filed by the auction-purchasers the learned Civil Judge (S.D.), Surat by judgment and order dated 30-4-1993 vacated the ex-parte injunction and directed the possession warrant to be executed.
(xv) Being aggrieved by the aforesaid judgment and order passed by the learned Civil Judge (S.D.) at Surat the present appellant-Gangaben preferred Misc. Civil Appeal No. 149 of 1993 in the District Court at Surat which came to be rejected by judgment and order dated 9th November, 1993 by the District Court at Surat.
(xvi) It is, thereafter, that the present appellant-Gangaben who is claiming through original co-sharer deceased Benkorben and who has never claimed anything more than l/3rd share in the suit property which was granted by the trial Court, however, with a view to defeating the ends of justice and not permitting the auction-purchasers to realise the fruits of decree, filed obstruction application No. 154 of 1993 in the Court of Civil Judge (S.D.) at Surat. In such obstruction application present appellant-Gangaben prayed for permanent injunction restraining auction-purchasers from executing the decree passed in Special Civil Suit No. 163 of 1979 till her obstruction application was heard and finally decided. She further claimed right of residence and maintenance in the property in question.
4. It is required to be noted that the present appellant-Gangaben is the heir and legal representative of one of the three co-sharers, i.e., late Benkorben. Admittedly, under the judgment and decree passed in partition suit, l/3rd share of late Benkorben was granted and she has never objected to final decree of partition being passed in said suit. All throughout the proceedings thereafter since 1983 deceased Benkorben was party to the proceedings and till she expired on 26th July, 1984 she did not claim any tenancy right or right of residence in the suit premises. Even after her death, her two heirs and legal representatives, namely, present appellant-Gangaben and present respondent No. 5 Kantilal were impleaded as party to Kirkul application and obstruction application filed by Kantilal came to be rejected after prolonged hearing by the trial Court and finally by the High Court and time was granted to him to vacate the suit premises. In such proceedings also present appellant-Gangaben was all throughout party and she did not claim any right whatsoever in the suit premises. It will be noted that she is a married daughter of deceased Benkorben and is staying with her husband. She had never claimed any right of residence or maintenance and she never claimed any such right all throughout the proceeding being obstruction application filed by appellant's real brother- Kant i lal. Her deceased mother Benkorben has also at no stage claimed either for herself or for her married daughter any right of residence or maintenance over the sun properly Having found that Kantilal has failed to resist the execution of possession warrant she instituted Special Civil Suit and claimed 1/9th share in the suit properly and tried to restrain the auction-purchasers from recovering the possession. Once again, she failed upto the District Court at Surat. Thereafter, new proceedings arc started by filing obstruction appliction and praying for injunction against execution of possession warrant till her so-called right of maintenance and residence is adjudicated upon. In the obstruction application filed by Kantilal his specific case was that he was the only person in possession of the suit property and he was claiming to be the tenant. Present appellant-Gangaben, though she was party to the proceeding, did not put forward her case that she also has the right of residence and maintenance in the suit property or that she was in possession of the suit property. She also did not object to the case put forward by Kantilal that he alone was in possession of the suit property. It was in this situation, that the learned Civil Judge (S.D.), Surat by his order passed below Exh. 1 in Misc. Application No. 154 of 1993 which was filed by present appellant-Gangaben for obstruction rejected the prayer for permanent injunction and rejected the prayer for stay of proceeding further with the Kirkul Application No. 53 of 1983. He, therefore, directed that the Misc. Application No. 154 of 1993 and No. 7 of 1994 be proceeded further on priority basis and that evidence should be led in the matter. It is against such order of the learned Civil Judge (S.D.), Surat that the present First Appeal is filed wherein appellant-Gangaben has obtained ad-interim relief in C.A. No. 2329 of 1995 in terms of para 4(B) on the statement being made by the appellant that she was in possession of the suit property.
5. Thereupon, two auction-purchasers who were all throughout successful and who on the deposit of auction price in the executing Court as back as 1983 were entitled to possession and who were not being permitted to reap the fruits of decree in their favour moved this Court for vacating the ad-interim relief by filing C.A. No. 5781 of 1995.
6. Mr. K.H. Baxi, learned Advocate for appellant-Gangaben has strenuously urged before this Court that the order passed below obstruction application No. 154 of 1993 in Special Civil Darkhast of 1982 dated 2nd June, 1994 was without jurisdiction and that the executing Court could not have rejected the prayer for injunction because the right of residence and maintenance put forward by the present appellant was yet to be adjudicated upon under Order 21, Rule 97 C.P. Code read with Rule 104 of Order 24. He submitted that the obstruction which is raised during execution of possession warrant is in the nature of suit and rights and contentions raised by such obstruction application are always required to be adjudicated as if the obstruction application is as good as suit filed by the party. It is no dobut true in the case of Chandravati Co-operative Housing Society Ltd., Maninagar v. Bhairavnath Education and Cultural Society reported in 1994 (1) GLR 116 this Court has the occasion to consider at length the effect of remedy under Order 21, Rule 97 as well as remedy available under Rule 104 of Order 21. The remedy of filing obstruction to a warrant possession under Order 21, Rule 97 is regarded as substantive remedy wherein even adjudication of right, title and interest of obstructionist can be gone into by the executing Court. It is also open to a party to file Regular Civil Suit for possession when the obstruction is by third party.
7. In the aforesaid reported decision this Court was specifically invited to decide the question of power of the executing Court to determine the rights of third parties under Order 21 Rule 97 and Rule 103 of C.P. Code. After extensively examining the scheme of amended Rules 97 and 103 of Order 21 this Court raised legal questions which arose for its decision in the broad spectrum of facts stated in the reported judgment. In fact, following questions were raised in its para 5 of the reported decision:
(a) What are the remedies of person other than judgment-debtor or person not in anyway acting at his instigation or on his behalf and who is in possession of immovable property when the holder of a decree for possession or purchser of any such property sold in execution of a decree comes with a warrant for possession?
(b) What are the remedies of holder of decree for possession when he is obstructed or resisted by third parties (parties other than judgment-debtor or person claiming under him)?
(c) Is remedy of instituting a separate suit challenging the legality and validity of decree available to a third party over and above the remedy of filing resistence or obstruction under Order 21, Rule 97 of C.P. Code?
(d) If answer to question No. (c) is in affirmative, should further proceedings under Order 21, Rule 97 undertaken by a holder of decree for removal of obstruction be stayed till the independent suit is decided and is Section 10 of C.P. Code applicable so as to justify the stay of execution proceedings?
(e) Is present revision application filed by the Power of Attorney-holder of decree-holder competent?
(f) Is interference of High Court under Section 115 of C.P. Code called for in the facts and circumstances of the case?
8. Thereafter the scheme of Rules 97 to 101 and 103 of Order 21 of C.P. Code as altered by Amendment of 1976 was fully examined how by this Court and how the scheme is altered was pointed out by this Court by making reference to the Commentary of Mulla on C.P. Code, 14th Edition as well as reference to 10th Edition of AIR Commentaries on the C.P. Code. Thereafter, in its para 7 of the reported judgment, this Court concluded legal position as under:
When a holder of a decree for possession was obstruced by a third party, Rule 97 provides him a remedy to apply to the Court complaining of such resistence or obstruction and Sub-rule (2) of Rule 97 which is substituted for old Sub-rule (2) provides that the Court shall proceed to adjudicate upon the application in accordance with the provision contained therein. Sub-rule (2) of Rule 97 is major departure from the scheme of removal of obstruction enacted under old Rule 97. It is pertinent to note that once such application is given by the holder of decree for possession, the executing Court is obliged to proceed to adjudicate upon the application. The use of words "shall" proceed to "adjudicate" leave no room for doubt that the exercise which the Court is to undertake is that of adjudicating the claims of the parties. The legislature has by introduction of the aforesaid Sub-rule (2) of Rule 97 substituted the summary remedy provided to a decree-holder by a full-fledged adjudicated proceedings and the order made therein has the force of the decree and is subjected to an appeal. It, therefore, becomes clear that remedy which is provided to a holder of decree for possession of immovable property under Rule 97 of Order 21 is now a substantive remedy wherein even adjudication of right, title and interest of the obstructor can be gone into by the Executing Court in view of the language employed in Rule 101 of Order 21 of Civil Procedure Code. It may be mentioned that over and above the remedy provided by Rule 97(2) it is open to him to file a regular suit for possession when obstruction is by a third party.
9. Keeping in mind the legal questions formulated by this Court, and more particularly, questions (a) and (b) as set out hereinabove, the Court dealt with the question of remedies of person other than the judgment-debtor. However, when the person is claiming under a judgment-debtor his rights to obstruct warrant for possession, are definitely limited. Such person cannot set up a better right or a higher right than the one which was claimed by the judgment-debtor. Respondent No. 5 Kantilal, son of deceased Benkorben was simply impleaded as heir and legal representative of deceased Benkorben, and he was, therefore, not entitled in law to claim any better or higher right than the right claimed by deceased Benkorben. Deceased Benkorben only claimed l/3rd share in the property which was granted to her by final decree. Even independent right which was claimed by respondent No. 5 Kantilal of being tenant of suit premises, inconsistent with the claim of his mother deceased Benkorben who was claiming to be the co-sharer of the suit property, was enquired into and adjudicated upon by the executing Court and was found without substance. In the First Appeal preferred in the High Court also said contention was negatived and the respondent No. 5 Kantilal undertook to hand over the possession of the suit property by 31st March, 1993. Despite this legal position of right of a person claiming as heir and legal representative of judgment-debtor, the claim of respondent No. 5 Kantilal was fully adjudicated upon. It is worthwhile to note that in such proceedings the present appellant-Gangaben, daughter of deceased Benkorben was all throughout a party, but she never claimed any independent right in the suit property over a period of ten years. She did not claim that she was in possession of the suit property. Her case that she was entitled to l/9th share out of l/3rd share allotable to her deceased mother-Benkorben is never denied by anyone, and an attempt made by her to thwart the execution proceedings by filing independent suit proved to be abortive as the trial Court rightly vacated the ad-interim relief and ordered the executing Court to proceed further with the execution of decree. The present appellant-Gangaben being the daughter of deceased Benkorben is undoubtedly claiming under deceased Benkorben as her daughter. She, therefore, cannot set up any better or higher right than that of the deceased Benkorben has set up. In this fact situation, in fact, she was not entitled to claim a full-fledged enquiry under Order 21, Rule 91 as regards her claim of maintenance or residence towards the suit property. Said claim was even not put forward by her mother-deceased Benkorben.
9.1 Assuming that the right of maintenance or residence claimed by present appellant was also required to be gone into, in my opintion the executing Court cannot turn Nelson's eye to the fact situation obtaining before it. Firstly, the executing Court must be alive to the fact that in India woes of litigants actually begin after obtaining decree from the competent Court. In the present case, admittedly as held in Special Civil Suit No. 163 of 1979 filed for partition of property by metes and bounds and for possession, decree was passed as back as 1981 and final decree was passed as back as 1982. In the subsequent execution proceeding it was found that as the properly being one common property of very small area, it was impossible of being partitioned by metes and bounds equally amongst three co-sharers and therefore, it was agreed that property should be sold by public auction and the sale proceeds should be distributed equally amongst three sisters. In such proceedings the mother of present appellant and respondent No. 5, namely, deceased Benkorben was a party, and she never objected to the aforesaid course being adopted. When the public auction of the said property was held, co-sharers were also permitted to participate and admittedly the present purchasers being Daykorben herself and her son-in-law participated and their offer being highest was accepted and sale was also confirmed. The sale price which was required to be deposited in the Court was deposited as back as 1983, and therefore, they became entitled to recover the possession of the suit property and other two sisters became entitled to their l/3rd share from the amount deposited in the Court. Admittedly, in the execution proceedings the original co-sharer Benkorben never objected to the execution of possession warrant, but when she expired in the year 1984 her son Kantilal (respondent No. 5) came forward and filed obstruction application claiming the right of tenancy. In such proceedings the present appellant-Gangaben was a party and she failed to put forward her claim of right of residence or maintenance. She also did not claim independent right of l/9th share or abandoned her right, if there was any, in the suit property. In fact her claim of l/9th share from the suit property could even otherwise be satisfied as l/3rd of sale price, being share of the deceased mother is lying deposited in the Court. In execution proceedings she cannot claim any larger right as she has stepped in the shoes of her deceased mother-Benkorben. Secondly, it should not be lost sight of that she was simply claiming as heir and legal representative of judgment-debtor in the partition suit. The judgment-debtor has not claimed any right above her l/3rd share in the suit property. As heir and legal representative, therefore, she could not have claimed any better or higher right than the judgment-debtor. Thirdly, the right of tenancy which was put forward by her brother-Kantilal was fully investigated into and finally rejected by the High Court and in such proceedings also the present appellant-Gangaben was party. Her silence at that time or her failure to put forward her claim of right of maintenance or residence in the suit property must also be given proper weight. No reason is forthcoming from her as to why she kept mum when her brother-Kantilal was claiming tenancy in the suit property and as to why she did not dispute the claim of her brother that he alone was in possession of the suit property. Fourthly, she filed suit at the most opportune time, i.e., on 17-3-1993 when only 14 days thereafter her brother-Kantilal has undertaken before the High Court to vacate the suit premises. It was, therefore, a deliberate, dubious and diabolical device adopted by her to anyhow cling/stick to suit premises and not to permit the auction-purchasers to reap the fruits of decree. Fifthly, it is also to be kept in mind that sale price was deposited by the auction-purchasers as back as 1983. They have by confirmation of sale in their favour and after depositing the full amount become entitled to recover the possession and they have lawfully acquired the right of getting possesssion of suit property and it is being denied by collusion and collaboration between brother Kami lal and sisicr Gangaben who have one after another resorted to separate proceedings so as to obstruct the execution of possession warrant. In such proceedings when a prayer for injunction is made by filing obstruction application by sister after ten years, and when she has chosen not to put forward any claim whatsoever in the suit premises, both under the doctrine of waiver or abandonment or by principle analogous to Order 2. Rule 2 C.P. Code she cannot be permitted to raise the claim of her right, title or interest in the suit property. Sixthly, it is also to be noted that she is the married daughter residing with her husband and has at no point of time during last decade claimed that she was staying in the suit premises. In fact, claim of her brother-Kantilal was that that he alone was in possession of the suit premises as a tenant and he agreed before the High Court to hand over vacant possession of the suit premises by 31st March, 1993. It is thereafter only on 17-3-1993 that she has come forward and filed independent suit. Undoubtedly, she has come to the Court with unclean hands and was not entitled to any equitable relief in execution proceedings. The trial Court was, therefore, right in not granting any injunction in her favour in the suit. In my opinion, the very principles would apply even when she filed application for obstruction. The very equitable principles are rightly applied by the executing Court and by impugned order the executing Court refused injunction prayed for and has permitted the execution of Kirkul application No. 55 of 1983. The executing Court has rightly not foreclosed any right of the parties to lead evidence in respect of the claim put forward by the present appellant. Since she was not the person in possession of the property and since she never put forward her claim at any point of time during last 10 years and since she never objected to the claim of her brother that he alone was in possession of the suit property, she was not entitled to any equitable relief and the learned 2nd It. Civil Judge (S.D.) Surat was fully justified in rejecting the Misc. Application No. 154 of 1993 by refusing to grant injunction as prayed for.
10. While parting with this judgment this Court cannot resist observing the fact that the provisions of Order 21 Rule 97 to Rule 103 C.P. Code should not be permitted to be misused especially when the party putting forward right, title and interest in the property is not claiming any independent right, title or interest but is simply claiming right as heir and legal representative of deceased judgment-debtor. When the deceased judgment-debtor had not claimed any higher or better right than what is awarded to him/her, the heir and legal representative stepping into the shoes of original judgment-debtor cannot claim any better or higher right and they may be confined to rights available to them only as heir and legal representative of deceased judgment-debtor. In fact, deceased Benkorben was simply claiming l/3rd share in the suit property. She also never claimed to be the person in exclusive possession of the suit property denying the right of other co-sharers to possess the suit property. She also never challenged the legality and validity of the final decree of partition. She also did not challenge the order of the Court to put the suit property to public auction and to distribute the sale proceeds equally amongst three co-sharers. She also did not challenge the subsequent order permitting the co-sharers to participate in the public auction. She also did not challenge the confirmation of sale and deposit of sale proceeds in the executing Court. In such a fact situation, one fails to understand as to how the son or daughter of deceased judgment-debtor can be permitted to set up a totally new and unsustainable claim. Even if such independent right, title and interest is to be investigated, the Court shall have to be very cautious of the fact that the provisions of Order 21, Rule 97 read with Rule 103 are not misused by dubious and diabolical methods by heirs and legal representatives of the judgment-debtors with a view to defeating and delaying the execution of lawful decree passed by the competent Court. As and when such an attempt is noticed by the Court, such parly must always be put to strict terms and conditions so that delay does not defeat the equity and does not defeat the right of the decree-holder. In the absence of any strict terms and conditions in a proper case the Court may also call upon the party-obstructionist to pay exemplary costs to the auction-purchaser decree-holders and this is one of such cases where in my opinion the costs should be awarded. In the facts and circumstances of the case, the appellant is directed to pay the costs of these proceedings to the auction-purchaser, namely, Somabhai Maganbhai and Daykorben Ranchhoddas and such cost is quantified at Rs. 2,500/-
11. In the result, First Appeal fails, and same is dismissed with costs as quantified hereinabove. If view of the aforesaid order on F.A. no order on C.A. No. 5781 of 1995 and ad-inierim relief granted in C.A. No. 2329 of 1995 stands vacated. Rule is discharged.