Gujarat High Court
Havabai Widow Of Deceased Adam Umar Kana vs Heirs Of Deceased Ghanchanbai Hurbai ... on 16 January, 2019
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/402/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 402 of 2019
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HAVABAI WIDOW OF DECEASED ADAM UMAR KANA
Versus
HEIRS OF DECEASED GHANCHANBAI HURBAI UMAR
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Appearance:
JENIL M SHAH(7840) for the PETITIONER(s) No. 1,2,3,4
for the RESPONDENT(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7,2.8,2.9,3,3.1,3.2,3.3,3.4,4
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 16/01/2019
ORAL ORDER
1. Order dated 14.03.2018 rendered below Exh. 1 in Regular Execution Application No. 9 of 1996 by the Judicial Magistrate First Class, Mangrol disposing of the Execution Petition on its satisfaction against the petitioners who were original defendantsjudgment debtors, is sought to be assailed in this petition under Article 227 of Constitution of India.
2. On consideration of the submissions made by the learned counsel for the petitioners and on perusing the impugned order as also the decree and other papers, it appears that the dispute pertained to three parcels of land bearing survey number 134 admeasuring 4 acre 16 guntha, survey number 206/1 admeasuring 2 acres and survey number 208 admeasuring 1 acre 11 guntha of Mankhetra village of Taluka Magnrol wherein 1/6th share was determined in favour of the respondents original plaintiffs in Regular Civil Suit No. 272 of 1979 in the year 1996. Twenty Three years on; the petitioners herein judgment debtor are still interested in protracting the litigation; may be in eternity ! Page 1 of 6 C/SCA/402/2019 ORDER
3. It appears that the Collector was appointed for effecting the partition by metes and bounds for execution of the decree. He however found the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 as a bar against fragmenting survey numbers 206/1 and 208; being small parcels of land. He thus found the decree inexecutable. The executing court was moved with an application Exh. 26 by the decree holder praying for the 1/6th share in the form of survey number 208 admeasuring 1 acre 11 guntha. In the said application, the court reiterated the execution of the decree by the Collector while giving necessary guidelines to the Collector by its order dated 07.09.2001. Eventually the report came to be filed reporting the execution of the decree stating that the possession of survey number 208 amdeasuring 1 acre 11 guntha was handed over to the decree holder. To this, the petitioners herein filed objections on 26.02.2002 which were not answered since the decree executed prior thereto and the possession was handed over to the decree holder.
4. According to the learned counsel for the petitioners, the court below exceeded its jurisdiction by going beyond the decree while approving the share of the decree holder in entire survey number 208. In his submission, the decree holder was entitled to the 1/6th share in each of the individual survey number and giving a share to him in one survey number only would amount to beyond the decree. Reliance has been placed on Brakewel Automotive Components( India) Private Limited vs. P.R. Selvam Alagappan (2017) 5 SCC 371 to buttress the submission that the court cannot go beyond the decree.
5. In considered opinion of this court, the decree was executable even against the survey number 208; being one of the parcel of land in Page 2 of 6 C/SCA/402/2019 ORDER dispute. The decree does not set apart the 1/6th share of the decree holder in each individual parcels of land. In the decree, entire measurement of three parcels of land has been computed and 1/6th share i.e. 1 acre 11 guntha has been set apart for the decree holder. On true interpretations of the decree, if one of the parcels of land admeasuring 1 acre 11 guntha was sufficient for satisfaction of the decree, it would not be necessary to set apart 1/6th share from different parcels of lands. The said argument has been conveniently made by the judgment debtor only with an object of defeating the purpose of the decree since, as reported by the Collector, if other parts are taken into consideration, the provisions of Fragmentation and Consolidation of Holdings Act, 1947 would impede the way of decree holder. The question however will be whether Fragmentation and Consolidation of Holdings Act, 1947 can overrule the decree? In other words whether the provisions under the Fragmentation and Consolidation of Holdings Act, 1947 can be applied in a case where a right of an owner of a piece of land is recognized and only partition is effected; by a decree.
6. As noted above on the facts of the case, it cannot be said that the court below exceeded its jurisdiction by going beyond the decree. The case of Brakewel Automotive Components( India) Private Limited vs. P.R. Selvam Alagappan (supra) therefore would not be of any assistance to the petitioner. In the very case pertinent observations have been made in para 21, 22 and 23 which can be extracted hereunder:
21. " As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and Page 3 of 6 C/SCA/402/2019 ORDER purported grounds having no bearing on the validity or the executability thereof.
22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:
6. "A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
23. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh vs. Jai Prakash University, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because Page 4 of 6 C/SCA/402/2019 ORDER the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view."
7. Having regard to the said observations as also having regard to the relevant provisions under Order 21 of Code of Civil Procedure, objections in the execution petition; unless substantial as provided under various provisions of Code of Civil Procedure, cannot be permitted to be raised for defeating the purpose of the decree. It is not the second inning that the judgment debtor gets. Interestingly if one looks at Order 21 Rule 54 and 58, the decree would be executed by attachment of the properties and the burden would lie upon the person contending contrary to the attachment. Looking to such scheme of provisions in relation to the decree, the petitioners cannot be permitted to raise objections at their sweet will as if the execution proceedings are second inning for them. Almost all the objections raised by the judgement debtor are in the nature of reiteration of his arguments in the suit. At several places he has made an averment that he is the owner of the property in question and he is in possession thereof. All such questions were determined in the suit and would not fall in the ambit of Order 21.
8. There is no reason also to doubt the report stating that the possession of survey number 208 admeasuring 1 acre 11 guntha was handed over to decree holder. If the petitioners still are found obstructing the same, they would be required to be removed therefrom, summarily.
Page 5 of 6 C/SCA/402/2019 ORDER9. The expectation of a notice by the petitioners asking for the possession of the land in question for the decree holder in execution of a decree, was misconceived.
10. It is also misconceived for the petitioners to say that application Exh. 26 was rejected. Infact the Collector was guided by the said application and eventually he successfully executed the decree.
11. For the foregoing reasons, no substance is found in this writ petition. It fails and is summarily rejected.
12. The petitioners shall be summarily removed; if necessary, by police help, by executing court, if causing an obstruction in possession and enjoyment of the property in question by the decree holder.
(G.R.UDHWANI, J) niru* Page 6 of 6