Gujarat High Court
Dilipbhai Bhagirathbhai Jaiswal vs Secretary, Ghanshyamnagar ... on 3 August, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/10508/2015 ORDER DATED: 03/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10508 of 2015
======================================
DILIPBHAI BHAGIRATHBHAI JAISWAL & 1 other(s)
Versus
SECRETARY, GHANSHYAMNAGAR CO-OPERATIVE SOCIETY
======================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1,2
MR RASESH H PARIKH(3862) for the Respondent(s) No. 1
MR.HEMANG H PARIKH(2628) for the Respondent(s) No. 1
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 03/08/2022
ORAL ORDER
1. This petition is filed under Article 227 of the Constitution of India, challenging the order dated 30.04.2015 passed by 8 th Additional Civil Judge and JMFC, Nadiad in Regular Execution Petition No. 28 of 2014, whereby execution application preferred by the society for executing a decree passed in Regular Civil Suit No. 138 of 1992, came to be partly allowed, ordering removal and demolition of encroachment on the open land or common plot situated adjacent to land bearing survey No. 2180 of the society, by the present petitioners - judgment debtors.
2. Mr. Vaibhav A. Vyas, learned advocate for the petitioners
- judgment debtors, submitted that once an execution application came to be filed and it came to be disposed of Page 1 of 4 Downloaded on : Thu Aug 04 21:43:52 IST 2022 C/SCA/10508/2015 ORDER DATED: 03/08/2022 recording a compromise, whereby petitioners - judgment debtors paid Rs. 60,000/- to the society, the decree could not have been executed thereof against them. It is further submitted that the decree is passed on 29.10.1996 and execution petition came to be filed in the year 2014, and therefore, it is beyond the period of limitation, and therefore, the Court could not have allowed the execution application, ordering removal and demolition of encroachment of the petitioners by appointing Court Commissioner.
3. Having heard Mr. Vaibhav A. Vyas, learned advocate for the petitioners as also the learned Counsel for the respondent, it appears that the decree came to be passed, declaring the open land or common plot situated adjacent to land bearing Survey No. 2180 of the plaintiff - society, on which the petitioners - original defendants had constructed the house, is of exclusive ownership and possession of the society and neither defendants nor any other person has any right, title or interest of any nature in the same. At the same time, the construction of a compound wall on the said open land or common plot of the society was held to be illegal and by perpetual injunction, the petitioners - original defendants in the suit were permanently restrained from constructing further, the compound wall, on the said open land or common plot of the Page 2 of 4 Downloaded on : Thu Aug 04 21:43:52 IST 2022 C/SCA/10508/2015 ORDER DATED: 03/08/2022 plaintiff - society and they were permanently restrained from raising any construction of any nature, whatsoever, on the same or on the said open land or common plot of the society.
4. It is further clear from the facts that on earlier occasion, when compromise was entered into between the society and the petitioners, Rs. 60,000/- were paid by the petitioners towards the satisfaction of the decree and the said execution application filed at the relevant time came to be dropped. It is also not in dispute that subsequently, the petitioners filed a suit for recovering the very said amount of Rs. 60,000/-, with interest, joining the then Secretary of the society in his individual capacity as party defendant, whereby the decree in that suit came to be passed and the amount of Rs. 1,32,000/- including interest, came to be paid by the society in satisfaction thereof. Thus, it is clear that on failure of the compromise by way of amount being repaid to the petitioners - original defendants with interest, in their suit, decree even otherwise became enforceable from the payment made to them. Not only that, in view of Article 136 of the Limitation Act, when a decree is passed in the nature of perpetual injunction and when it is sought to be enforced or executed, there is no period of limitation provided for.
Page 3 of 4 Downloaded on : Thu Aug 04 21:43:52 IST 2022
C/SCA/10508/2015 ORDER DATED: 03/08/2022
5. Therefore, in any view of the matter, the order impugned passed in the execution application cannot be said to be beyond the period of limitation and there is no illegality or irregularity found, and therefore, while exercising jurisdiction under Article 227 of the Constitution of India, I see no reason to interfere with the same. Hence, this petition is rejected.
Notice discharged. Ad-interim relief granted earlier, if any, stands vacated.
(UMESH A. TRIVEDI, J.) Raj Page 4 of 4 Downloaded on : Thu Aug 04 21:43:52 IST 2022