Gujarat High Court
Prabhav Co-Operative Housing Society ... vs Heirs And Lrs Of Bechardas Govindram on 18 February, 2025
NEUTRAL CITATION
C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025
undefined
Reserved On : 24/01/2025
Pronounced On : 18/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19656 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 14098 of 2019
With
CIVIL APPLICATION (FOR INJUCTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 14098 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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PRABHAV CO-OPERATIVE HOUSING SOCIETY LTD.
Versus
HEIRS AND LRS OF BECHARDAS GOVINDRAM & ORS.
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Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1
MR. SHYAM K SHELAT(6552) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3,4
MR JF MEHTA(461) for the Respondent(s) No. 1,1.2,1.3
MR RD DAVE(264) for the Respondent(s) No. 2.1,2.2,2.3,2.4
ROHAN A SHAH(7497) for the Respondent(s) No. 5
RUSHABH H SHAH(7594) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. The word of the Privy Council, stated more than a century ago, is relevant today, which is so referred to and Page 1 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined observed by the Honourable Supreme Court of India in the case of Jini Dhanrajgir and Another vs. Shibu Mathew and Another, reported in 2023 SCC Online SC 643, wherein it has been observed as under:-
"[2] More than a century and a half back, the Privy Council (speaking through the Right Hon. Sir James Colville) in The General Manager of The Raj Durbhunga, Under the Court of Wards vs. Maharajah Coomar Ramaput Singh, 1872 14 MooIndApp 605 lamented that the difficulties of litigants in India indeed begin when they have obtained a decree. A reference to the above observation is also found in the decision of the Oudh Judicial Commissioner's Court in Kuer Jang Bahadur vs. Bank of Upper India Ltd. Lucknow, 1925 AIR(Oudh) 448. It was ruled there that the Courts had to be careful to ensure that the process of the Court and the laws of procedure were not abused by judgment- debtors in such a way as to make the Courts of law instrumental in defrauding creditors, who had obtained decrees in accordance with their rights.
[3] Notwithstanding the enormous lapse of time, we are left awestruck at the observation of the Privy Council which seems to have proved prophetic. The observation still holds true in present times and this case is no different from cases of decree-holders' woes commencing while they are in pursuit of enforcing valid and binding decrees passed by civil Courts of competent jurisdiction. The situation is indeed disquieting, viewed from the perspective of the decree- holders, but the law, as it stands, has to be given effect whether the Court likes the result or not. In Martin Burn Ltd. vs. Corporation of Calcutta, 1966 AIR(SC) 529, this Court held that a Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."
(Emphasis supplied).
2. Both these petitions, though filed under Article 226 and 227 of the Constitution of India, but considering the prayers Page 2 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined made in the respective petitions, would fall only under Article 227 of the Constitution of India. The following prayers are being made in the respective petitions, which read as under:
PRAYER IN SPECIAL CIVIL APPLICATION NO.14098 OF 2019 "(A) This Hon'ble Court may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction to quash and set aside the impugned order dated 18.2.2019 passed below applications exhs. 184, 203, 214, 215, 216 and 222 in Regular Execution Petition No. 11 of 2016 (Annexure: A Colly).
(B) This Hon'ble Court may be pleased to issue a writ of certiorari and/or any other appropriate writ, order ог direction declaring that proceedings by way of Regular Execution Petition No. 11 of 2016 in the court of 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, are illegal, unjust, improper and without jurisdiction.
(C) This Hon'ble Court may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction declaring that Sale Deed dt. 8-4-2019 (Annex. E) in favour of the decree holders executed by the Court Commissioner is void which is in violation of sec. 63 r/w 83A of the Gujarat Tenancy and Agricultural Lands Act and in breach of condition imposed by the Civil Court in the Decree itself. This Hon'ble Court further be pleased to declare that consequently, sale deed executed by decree holders in favour of Resp. No.5 Narendrabhai maganbhai Patel is also void ab initio, unenforceable and be pleased to quashed and set aside the same.
(D) Pending hearing and final disposal of the present Page 3 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined petition, the respondents be restrained from transferring, alienating, creating any charge thereon and or dealing with the suit land i.e. Survey No.242/7 of Bodakdev, Tal.
Daskroi, Dist. Ahmedabad in any manner.
(E) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the execution, implementation and operation of the impugned order dated 18.2.2019 passed by 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, passed below applications exhs. 184, 203, 214, 215, 216 and 222 in Regular Execution Petition No. 11 of 2016 (Annexure:
A Colly) and further be pleased to stay further proceedings of Regular Execution Petition No. 11 of 2016 pending in the court of 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur.
(F) Any other and further relief as may be deemed fit and proper may be granted by this Hon'ble Court in the interest of justice."
PRAYER IN SPECIAL CIVIL APPLICATION NO.19656 OF 2019 "A) The Hon'ble Court be pleased to admit and allow the present petition by issuing a writ of certiorari or any other appropriate writ, order or direction to quash and set aside the impugned order at Annexure G (Colly) dated 18/2/2019 passed by the 4th Addl. Senior Civil Judge, Ahmedabad Rural, Mirzapur below applications Exhs. 184, 203, 214, 215, 216 and 222 in Regular Execution Petition No. 11/2016 in Special Civil Suit No. 83/1981 and be further pleased to declare acts undertaken pursuant to said impugned order as illegal, non-est, and without jurisdiction.
B) Pending hearing and final disposal of the present petition the Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned Page 4 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined order dated 18/2/2019 passed by the 4th Addl. Senior Civil Judge, Ahmedabad Rural, Mirzapur below applications Exhs. 184, 203, 214, 215, 216 and 222 in Regular Execution Petition No. 11/2016 in Special Civil Suit No. 83/1981 on such terms and conditions which the Hon'ble Court may deem fit and proper;
C) Pending hearing and final disposal of the present petition the Hon'ble Court be pleased to restrain the Respondents from transferring, dealing with, alienating, creating any charge on the land bearing Survey No. 242/7 of Bodakdev, Taluka: Daskroi, Dist: Ahmedabad, in any manner whatsoever, and to maintain status quo as to title and possession of subject property. D) Any other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of the justice."
3. Considering the aforesaid, I would like to treat these petitions as filed under Article 227 of the Constitution of India only and accordingly, decide the controversy raised in the respective petitions.
4. The facts in the respective petitions are not much in dispute, as both the petitioners are challenging the impugned order dated 18.02.2019, passed by the Executing Court. Therefore, with consent of learned advocate of the respective parties of both these petitions, both were heard together at Page 5 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined length and accordingly, I would like to pass a common judgment.
5. If so required, as and when necessary, the parties will be referred to as per their original position before the Trial Court.
6. To have clarity about the status of the respective parties joined in the respective petitions, their status is referred to as under:
6.1 The petitioners of Special Civil Application No. 14098 of 2019 happen to be the legal heirs of Jeevabhai Natabhai -
judgment debtor, (hereinafter referred to as "judgment debtor"). The petitioner of Special Civil Application No.19656 of 2019 is a cooperative society who purchased the suit property during the pendency of the Execution Petition from the petitioners of the aforesaid Special Civil Application No. 14098 of 2019 (hereinafter referred to as "obstructor"). 6.2 In Special Civil Application No. 14098 of 2019, Respondent No. 1 happens to be the legal heir of Bechardas Govindram - decree holder (hereinafter referred to as "decree holder"). Respondent No. 2 appears to be Judgment Debtor Page 6 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined No. 1 (hereinafter referred to as 'Judgment Debtor 1'). The obstructor is joined as Respondent No. 3. 6.3 Whereas in Special Civil Application No. 19656 of 2019, apart from said persons, Respondent No.5 is joined who happens to be a subsequent purchaser, in whose favour, the decree holder has executed the registered sale deed on 13.05.2019, which is after passing of order, impugned in the petitions (hereinafter referred to as "subsequent purchaser").
7. The short facts, which are necessary to resolve the controversy involved in the petitions, are as follows:
7.1 One Bechardas Govindlal (decree holder) had entered into an agreement to sale on 16.06.1972 with one Jivabhai Nathabhai (judgement debtor) in relation to suit land. It appears that said Jivabhai was the owner of the suit land bearing Survey No. 242/7, situated at Bodakdeve, admeasuring 1 acre and 10 Gunthas - about 5059 sq.mts.
7.2 The said Bechardas Govindram had filed Special Civil Suit No.83 of 1981 before the Civil Judge (Senior Division), Ahmedabad at Mirzapur, thereby sought performance of the Page 7 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined aforesaid agreement to sale. Jivabhai Nathabhai and one Bhogilal Bhaichandbhai were the defendants of the said suit, i.e., Judgment Debtor and Judgment Debtor 1, respectively.
7.3 After hearing the parties and appreciating the evidence on record, the Trial Court, vide its judgment and decree dated 22.02.1989, partly allowed the aforesaid suit in favour of the plaintiff - decree holder.
7.4 The Execution Petition, being Special Darkhast No. 65 of 1989, appears to have been filed by the decree holder on 06.07.1989. The judgment debtor appears to have filed objections against such execution at Exhibit 17. Judgment Debtor No. 1 had adopted such objections.
7.5 It further appears that during the pendency of the aforesaid Execution Petition, the judgment debtor had challenged the judgment and decree dated 22.02.1989 by filing a First Appeal before this Court, being First Appeal No. 219 of 1996. Since there was a delay in filing such appeal, Civil Application No.521 of 1996 came to be filed on 18.01.1996.
This Court, vide its judgement/order dated 09.03.1998, appears Page 8 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined to have not condoned the delay, thereby First Appeal would not survive being not registered then, came to be dismissed. 7.6 After lost in the first appeal, the judgment debtor executed a registered sale deed of the suit land which was presented on 03.02.1998 but registered on 21.03.1998 in favour of the obstructor, albeit, through their power of attorney. 7.7 Thereafter, the judgment debtor had filed Regular Civil Suit No. 378 of 1999 for cancellation of such registered sale deed executed in favour of the obstructor, which came to be dismissed and against which, an appeal is pending before the District Court concerned.
7.8 Likewise, the decree holder appears to have filed Regular Civil Suit No.72 of 2000 against the obstructor and others, seeking cancellation of the aforesaid sale deed dated 21.03.1998. This suit appears to have been dismissed for default as on today.
7.9 After appreciating all the objections of judgment debtors, vide its judgment and order dated 29.04.2004, the Executing Court allowed the Execution Petition by passing a Page 9 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined detailed order below Ex.1, which will be referred in the later part of the judgment.
7.10 As per order dated 29.04.2004 passed by the Executing Court, decree holder appears to have deposited balance sale consideration of Rs. 34,005/ in the Court on 01.07.2004. 7.11 It further appears that the judgment debtor had challenged the aforesaid order passed by the Executing Court by way of Civil Revision Application No. 399 of 2004 before this Court, which was dismissed by this Court, vide its judgment and order dated 24.03.2005. Such fact is not disclosed in these petitions which is nothing but a suppression of material fact by the petitioners and its effect will consider in later part of this judgement.
7.12 Having lost in the appeal as well as all objections of judgement debtor were turn down in execution which was confirmed by this Court by dismissing Revision then, the judgment debtor could not have any reasons to object the execution petition. However, the decree holder was unable to get the fruits of the decree for quite long time, which is Page 10 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined confirmed from the following events.
7.12.1 The decree holder appears to have filed an application below Exhibit 156 on 30.11.2004, seeking the appointment of a Court commissioner for execution of the sale deed. As observed hereinabove, the judgment debtors had lost their objections before the Executing Court and so also lost in appeal and revision before this Court then, at this stage, the obstructor raised an objection against Exhibit 156 by filing an objection application below Exhibit 159 on 30.12.2004, followed by another two applications filed below Exhibits 162 and 164 on 30.12.2004 itself.
7.12.2 The obstructor had contended in its applications filed below Exhibit 159/162/164 that the decree holder should not disturb its possession as obstructor is bona fide purchaser value without notice having purchased suit property through registered sale deed from the different legal heirs of said Jivabhai so mentioned in the applications. So, in its applications filed below Exhibits 162/164, it had requested for rejection of the prayer of decree holder filed below Exhibit 156 Page 11 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined for execution of the sale deed in favour of the decree holder. 7.12.3 The Executing Court again decided the objections of the obstructor, vide its order dated 13.01.2006, thereby allowing the application of the obstructor filed below Exhibit 159, whereas the application of the decree holder filed below Exhibit 156 as well as applications of obstructor filed below Exhibits 162 and 164 were rejected. So, the possession of the obstructor was protected.
7.12.4 Being aggrieved by the aforesaid order, the decree holder had challenged the aforesaid order before this Court by way of Special Civil Application No. 11781 of 2006, wherein after hearing the parties, this Court, vide its order dated 24.01.2012, recorded the statement of learned counsel appearing the obstructor that the obstructor is not pressing its application filed below Exhibit 159 (which was allowed by the Executing Court). So, in view of not pressing application at Exhibit 159 by the obstructor, this Court in its aforesaid order observed that the observations made in the order dated 13.01.2006 with regard to the said application shall be Page 12 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined considered as ineffective. Consequently, the decree holder has not pressed the aforesaid petition.
7.12.5 Nonetheless, liberty was reserved in favour of the parties to file any appropriate proceeding before the appropriate Court, including in the pending proceedings between the parties. Though, no such applications were filed either by judgement debtor or obstructor till passing of the impugned order.
7.12.6 It is also required to be noted here that during this period, the judgment debtors remained silent and appear to have not tendered their objections but only obstructor had raised an objection against an application of the decree holder filed below Exhibit 156.
7.12.7 When the application of the obstructor filed below Exhibit 159 was withdrawn, again on 31.03.2012, the decree holder had filed a similar application making prayer as made in its application at Exhibit 156, which was filed below Exhibit 184, its impugned in the present petition. 7.12.8 Now, at this stage, the judgment debtors have come Page 13 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined into the picture and strongly objected to the application at Exhibit 184 filed by the decree holder, and filed objections below Exhibit 203, 214, 215, 216 and 222. No written objections appear to have been filed by the obstructor, but their oral objections have been taken note of by the Executing Court in its impugned order.
7.12.9 After hearing the parties at length, considering the objections so raised by the judgment debtors, and taking note of the aforesaid orders passed by the Executing Court, vide its impugned order dated 18.02.2019, the Executing Court has rejected all the objections of the judgment debtors/obstructor, thereby allowed the impugned application filed by the decree holder below Exhibit 184.
7.12.10 After the passing of the impugned order, the Court commissioner executed a registered sale deed on 08.04.2019 in favour of the decree holder, and later on, the decree holder executed a registered sale deed in favour of respondent No.5 - the subsequent purchaser on 13.05.2019 to whom possession has been delivered through process of the execution. Page 14 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025
NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 7.12.11 After passing of the impugned order and ouster of the obstructor from suit land, it appears that obstructor has filed objections which are submitted at Annexure H to its petition. It is claimed to be filed under Order XXI Rule 97 to 99, read with Section 47 and 151 of the Code of Civil Procedure, 1908 (herein after referred as 'Code, 1908'), is claimed to be pending as on date before the Executing Court.
8. Being aggrieved and dissatisfied with the impugned order dated 18.02.02019 passed by the Executing Court, being 4 th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad, below Exhibit 184, along with below Exhibit 203, 214, 215, 216, and 222, in Regular Execution No.11 of 2016, the same has been challenged by way of these petitions by the judgment debtor and obstructor respectively. The respondents have opposed the aforesaid petitions, whereby the decree holders have filed their detailed reply. SUBMISSION OF THE JUDGMENT DEBTOR - PETITIONERS OF SPECIAL CIVIL APPLICATION NUMBER 14098 OF 2019
9. Learned advocate Mr. R.D. Dave, appearing for the Page 15 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined judgment debtor, would submit that the impugned order passed by the Executing Court is dehors the provisions of law and it exceeds and travelled beyond the decree originally passed by the competent Court.
9.1 Learned advocate Mr. Dave would further submit that the decree holder, having failed to obtain necessary permission, which was required to be taken as per the decree as well as the order dated 29.04.2004 passed by the Executing Court below Exhibit 1 in the Execution Petition, execution of the sale deed in favor of the decree holder by the Court Commissioner is expressly illegal and requires to be quashed and set aside.
9.2 Learned advocate Mr. Dave would further submit that the decree holder, having failed to comply with the condition of the decree, did not deposit the remaining amount and also failed to obtain necessary permission from the Collector under Section 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948, so, the impugned order is bad in law and requires interference by this Court in the exercise of its power under Page 16 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Article 227 of the Constitution of India. 9.3 Learned advocate Mr. Dave would further submit that when the judgment and decree dated 22.02.1989 were not executed for more than 30 years, as the decree holder failed to comply with the principal condition of the decree and did not pay the consideration within the stipulated time, nor applied for its extension permission then as per Section 28 of the Specific Relief Act, the decree is unenforceable and the judgment debtor can rescind such contracts. 9.4 Lastly, Learned advocate Mr. Dave would submit that when the Court commissioner has executed a sale deed in favour of the decree holder without fulfilling the conditions stipulated in the decree, such a sale deed is ex facie illegal and requires to be quashed and set aside, as the Executing Court has travelled beyond the decree.
9.5 Making above said submissions, Learned advocate Mr. Dave would request this Court to allow the petition. 9.6 To buttress his arguments, he has relied upon the following decisions passed by the Honorable Supreme Court of Page 17 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined India and this Court, which are as under:-
(i) P. Shyamala Vs. Gundlur Masthan repored in AIR 2023 1224 (SC);
(ii) Prem Jeevan Vs. K.S.Venkata Raman reported in 2017 (11) SCC 57;
(iii) S.Bhaskaran Vs. Sebastian (Dead) Lrs. Reported in 2019 (9) SCC 161;
(iv) Rameshbhai Chaturbhai Prajapati and Ors. Vs. Minaxiben Wd/o Rasiklal Tilakram & Ors. reported in 2011 (2) GLH 760.
SUBMISSION OF THE OBSTRUCTOR - PETITIONERS OF SPECIAL CIVIL APPLICATION NO.19656 OF 2019
10. Learned advocate Mr. K. V. Shelat, appearing for the petitioner/s -obstructor, would adopt the arguments of learned advocate Mr. R.D. Dave, appearing for the judgment debtor. 10.1 Nonetheless, Mr. Shelat would submit that the impugned order also suffers from various inherent defects, whereby the impugned order is not sustainable in law. 10.2 Learned advocate Mr. Shelat would submit that it is true, pending execution, the obstructor had purchased the suit property through a registered sale deed on 21.03.1998, but had purchased the undivided share of the co-sharer/owners of the suit property, who had never entered into any agreement to Page 18 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined sell with the decree holder. Therefore, the provisions of Rule 102 of Order XXI of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC"), would not be applicable to the obstructor.
10.3 Learned advocate Mr. Shelat would submit that originally defendant No.1, i.e. Jivabhai Nathabhai was not the sole owner of the suit property in question but was a co- owner/sharer of the suit property in question. Therefore, the impugned order for the appointment of the Court commissioner for the execution of the sale deed for the entire suit property is contrary to the provisions of the Transfer of Property Act as well as the Hindu Succession Act, as other co-owners/sharers of the suit property were neither parties to the agreement to sell nor the aforesaid suit.
10.4 Learned advocate Mr. Shelat would further submit that there were in total six co-owners of the suit property and the obstructor, having purchased 5/6th share of other co-sharers of suit property than right, title, and interest of original defendant No.1 - Jivabhai Nathabhai was not jeopardized Page 19 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined thereby the impugned order for execution of the sale deed in favour of the decree holder for the entire suit property is bad in law.
10.5 Learned advocate Mr. Shelat would further submit that the other co-owners/ sharers of the suit property (petitioners of SCA/14098/2019), after the execution of the sale deed, which was executed through their power of attorney holder, challenged such sale deed by way of Regular Civil Suit No.378 of 1999, which came to be dismissed. However, the appeal against the judgment and decree is pending before the District Court.
10.6 Learned advocate Mr. Shelat would further submit that the decree holder had also filed Regular Civil Suit No.72 of 2000, challenging such a sale deed executed in favour of the obstructor by other co-sharers thereby sought its cancellation. However, such a suit filed by the decree holder was dismissed for default and once restored back on file, but again dismissed for default, and has not been restored as on date. 10.7 Learned advocate Mr. Shelat would submit that the Page 20 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined right, title, and interest of the obstructor have already been recognized by the Civil Court, and the efforts to challenge its sale deed is already culminated into the dismissal of said suits. 10.8 Learned advocate Mr. Shelat would submit that in light of the aforesaid facts and circumstances of the case, when the obstructor has a right, title, and interest and has purchased 5/6th share of the other co-owners/sharers out of six sharer of the suit property in question, the impugned order passed by the Executing Court, thereby registering the sale deed executed in favour of the decree holder by the Court commissioner, requires to be declared null and void.
10.9 Learned advocate Mr. Shelat would submit that as a consequence, the ouster of the obstructor from suit land is bad in law, for which they have filed necessary objections after the passing of the impugned order. Learned advocate Mr. Shelat, learned advocate, would submit that considering the provisions of Order XXI Rule 97 to 102 of the Code, 1908, such objections are valid and require to be decided by the Executing Court in light of the aforesaid facts and circumstances of the Page 21 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined case.
10.10 Making above said submissions, Learned advocate Mr. Shelat would request this Court to allow the petition. 10.11 To buttress his arguments, he has relied upon following judgments:-
(i) Silverline Forum Pvt. Ltd. v. Rajiv Trust and another. reported in (1998) 3 SCC 723;
(ii) Bhramdeo Chaudhary v. Rishikesh Prasad Jaiswal reported in (1997) 3 SCC 694;
(iii) Shreenath v. Rajesh reported in (1998) 4 SCC 543;
(iv) Har Vilas v. Mahendra Nath reported in (2011) 15 SCC 377;
(v) Sameer Singh v. Abdul Rab reported in (2015) 1 SCC 379;
(vi) K. Kalpana Saraswathi Vs. P.S.S. Somasundaram Chettiar reported in (1980) 1 SCC 630;
(vii) Hasham Abbas Sayyad v. Usaman Abbas Sayyad reported in (2007) 2 SCC 355;
(viii) W.B. Essential Commodities Supply v. Swadesh Agro Farming reported in (1999) 8 SCC 315;
(ix) P.R. Yelumalai v. N.M. Ravi reported in (2015) 9 SCC 52.
SUBMISSION OF THE DECREE HOLDERS AND SUBSEQUENT PURCHASERS 10.12 Learned Senior Counsel Mr. R.S. Sanjanwala with Mr. Page 22 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Rohan A. Shah, learned advocate appearing for respondent No.5 - the subsequent purchaser in Special Civil Application Number 19656 of 2019, along with learned advocate Mr. Jayesh F. Mehta, for the decree holder, have vehemently objected to these petition and would jointly submit that present petitions require to be dismissed with exemplary costs, as there is material suppression in the present petitions. According to both these advocates, by withholding relevant facts and the orders passed either by the Executing Court or by this Court, the petitioners have filed the present petitions, thereby mislead this Court.
10.13 Learned Senior Counsel Mr. Sanjanwala, appearing for the subsequent purchaser with learned advocate Mr. J. F. Mehta, appearing for the decree holder would submit that there is a detailed affidavit-in-reply filed by the decree holders pointing out the suppression of material facts by the judgment debtor in his petition. There is no rejoinder is filed denying such fact. They would submit that without disclosing the earlier round of litigations, which has reached up to this Page 23 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Court, having failed so in their attempt, in another round of litigation, the judgment debtor has re-agitated the issues, which is not permissible in law.
10.14 Learned advocate Mr. Mehta would submit that when all objections of the judgment debtor had been rejected by the Executing Court vide its order dated 29.04.2004, passed below Exhibit 1 in the original Execution Petition, which was confirmed by this Court vide its order dated 24.03.2005 by rejecting their Civil Revision Application No.399 of 2004, nothing was required to be agitated by the judgment debtor in the impugned application filed by the decree holder for execution of the sale deed in their favour. He would submit that the challenge to the order dated 29.04.2004 in the revision petition preferred before this Court is not disclosed in the petition by the judgment debtor, which is a material suppression of fact and goes to the root of the matter. 10.15 Learned advocate Mr. Mehta would submit that as per the settled legal position of law, even the principle of res judicata would apply in the execution, thereby the judgment Page 24 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined debtor is prevented from objecting to the execution of the decree on any grounds that were either raised and rejected or could have been raised but were not raised being waived. 10.16 Learned advocate Mr. Mehta would submit that when the petitioners are not coming with clean hands then, while seeking equitable relief from this Court, this petition may not be entertained.
10.17 Learned advocate Mr. Mehta would further submit that at no point of time, the judgment debtor has shown his readiness and willingness to comply with any of the conditions imposed in the decree and order dated 29.04.2004 by the Executing Court. Therefore, later on, there is no right available to the judgment debtor to contend that there is non- compliance with conditions by the decree holder. 10.18 Learned advocate Mr. Mehta would submit that there is no time limit fixed by the competent Court while granting the decree in favour of the plaintiff to deposit the amount, and it is misconceived on the part of the petitioners to rely upon Section 28 of the Specific Relief Act. In fact, after passing of Page 25 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined the order dated 29.04.2004, as per said order, decree holder has deposited balance sale consideration on 01.07.2004 then as such said plea of judgement debtor is misconceived at law. 10.19 Learned advocate Mr. Mehta would further submit that the decree holder was an agriculturist, which is clearly stated in the Execution Petition itself, filed in the year 1989. This fact is also observed in the original judgment passed by the civil Court on 20.02.1989, wherein paragraph 21 clearly suggests that no question has been put to the plaintiff regarding his status as a non-agriculturist. Therefore, he would contend that there was no need for the decree holder to obtain any permission from the Collector, as submitted by the judgment debtor.
10.20 Learned advocate Mr. Mehta would further submit that once all objections were decided by the Executing Court in the first round of litigation, in a subsequent round of litigation, neither the judgment debtor nor the obstructor has any say before the Executing Court. Therefore, there is no error committed by the Executing Court in rejecting those objections Page 26 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined in its impugned order.
10.21 Learned Senior Counsel Mr. R.S. Sanjanwala with learned advocate Mr. Rohan Shah, albeit, adopting the aforesaid arguments of learned advocate Mr. Mehta would submit that they are bona fide purchasers of the property from the decree holder, and the objections so raised by the judgment debtor and obstructor are barred by the principle of Res-judicata and are required to be thrown out at the threshold.
10.22 Learned Senior Counsel Mr. Sanjanwala, would submit that when the judgment debtor has lost all their objections, which were raised and decided by the Executing Court and confirmed by this Court at the first instance, they have no right to raise any such objections, otherwise, there will be no end to the execution.
10.23 Learned Senior Counsel Mr. Sanjanwala would further submit that it is now well-settled law that the principle of Res- judicata/Constructive Res-judicata would apply in execution proceedings itself. He would rely upon explanation VII to Page 27 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Section 11 of C.P.C.
10.24 Learned Senior Counsel Mr. Sanjanwala would rely upon the decision of the Honorable Supreme Court in Barkat Ali and another vs. Badrinarain (Dead) by Lrs., reported in 2008 (4) SCC 615.
10.25 Learned Senior Counsel, Mr. Sanjanwala would submit that, as far as the obstructor is concerned, who lost in the second round of litigation when its application filed below Exhibit 159 was withdrawn in the year 2012, this is a concluding point for the obstructor, who cannot now be permitted to obstruct the decree at any cost. 10.26 Learned Senior Counsel, Mr. Sanjanwala would contend that the obstructor have deliberately not submitted complete set of facts and the orders passed by the Executing Court below Exhibits 156, 159, 162 and 164, thereby suppressed material facts.
10.27 Learned Senior Counsel, Mr. Sanjanwala would submit that once the obstructor lost in his application filed below Exhibit 162, thereby challenged the prayer of the decree holder Page 28 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined made in his application filed below Exhibit 156, then later in point of time, when decree hold had submitted similar application at Exhibit 184 (impugned application), the obstructor has no right to raise any grievance by objecting to the impugned application filed by the decree holder at Exhibit 184. 10.28 Learned Senior Counsel Mr. Sanjanwala would further submit that this Court, vide its order dated 24.01.2012 in Special Civil Application no.11781 of 2006, has categorically recorded the submissions of the learned advocate for the obstructor, whereby the obstructor withdrew his objection application below Exhibit 159 unconditionally. Consequently, this Court, in its aforesaid order, has observed that the order impugned in the petition and the observations made therein with regard to the application at Exhibit 159 filed by the obstructor shall be considered ineffective. 10.29 So, learned Senior Counsel Mr. Sanjanwala would submit that the obstructor has no independent right to obstruct the execution of the decree once the judgment debtors have Page 29 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined lost their right to object in any subsequent round of litigation as well as having purchased the suit property from the judgment debtor during the pendency of the execution, would disentitle him from objecting as per the provisions of Rule 102 of Order XXI of the Code of Civil Procedure, 1908. 10.30 Learned Senior Counsel Mr. Sanjanwala would submit that the subsequent purchaser has purchased the suit property through the execution of a registered sale deed from the decree holder and is in possession of the suit property. He would submit that the applications filed by the obstructor, post-execution of the sale deed in favour of the decree holder, are nothing but dilatory tactics. By hook or crook, either the judgment debtor or the obstructor want to keep the dispute alive, which is required to be quietus, otherwise, neither the decree holder nor the subsequent purchasers will be able to enjoy the decree.
10.31 So, Learned Senior Counsel Mr. Sanjanwala would request this Court to dismiss and reject the so-called objections of the obstructor filed under Order XXI Rule 97 to 99 of the Page 30 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Code of Civil Procedure, 1908, in Special Civil Application No.19656 of 2019.
10.32 Thus, Making above said submissions, Learned Senior Counsel Mr. Sanjanwala and Learned advocate Mr. Mehta would request this Court to dismiss both these petitions with exemplary costs.
10.33 To buttress their arguments, they would rely upon the following decisions of the Honorable Supreme Court of India:-
(i) Silverline Forum Private Limited vs. Rajiv Trust and Another, reported in 1998 (3) SCC 723,
(ii) Usha Sinha vs. Dina Ram and others, reported in 2008 (7) SCC 144.
(iii) Haji Abdul Mateen (Decd.) Through his Lrs.
vs. Sheikh Haji Firozuddin And others, reported in 2014 SCC Online Del 1397.
(iv) Swastik Builders, nagpur and another vs. Dr.Shobha W.o Bhaskar Kaore and others reported in 2020 SCC Online Bom 224.
(v) M/s Sharma Construction Compnany Nagpur through its Partners and Others vs. Praveenkumar S.o lilapat Bansal and others. in Writ Petition No.4406 of 2018 by the High Court of Judicature at Bombay, Nagpur Bench.
10.34 Learned senior counsel, Mr. Sanjanwala, appearing for subsequent purchaser would lastly submit that he has already Page 31 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined supplied a copy of paper book, which includes all previous orders passed by Executing Court and this Court, which may be taken on record. On inquired by this Court, it is confirmed by learned Advocate of Mr. K. V. Shelat appearing for the petitioner-obstructor that said paper book is received by him long back and not disputing any of documents including orders submitted with paper book. So, such documents/orders in the form of the paper book is taken on record. The orders which are part of paper book will be referred in later part of this judgement.
11. No other or further submissions are made being made by any of the learned advocates appearing for the parties. ANALYSIS
12. Before adverting to the whole issue germane in the present petition, this Court would like to remind itself and would like to refer decision of the Hon'ble Supreme Court of India in the case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein the law has been summarized thereby the scope of the power Page 32 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 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:-
"[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 Page 33 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 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 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 Page 34 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 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 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 Page 35 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 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.
(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.
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(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 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."
(Emphasis supplied) Page 37 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined
13. It is also apt to reply upon the decision of 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 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 Page 38 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 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 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."
(Emphasis supplied)
14. The controversy which arises in the present petitions in regards to the execution of a decree, which was passed in the year 1989 i.e. 22.02.1989 but was finally executed through the Executing Court vide its impugned order dated 18.02.2019 almost after 30 years.
15. At the outset, this Court would like to observe a few facts and also the conduct of the respective petitioners.
16. Suppression of material facts by petitioners. 16.1 The judgment debtor, having lost before the Executing Page 39 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Court while raising all the permissible objections decided against them, whereby the Executing Court vide its order dated 29.04.2004 has allowed the execution filed by the decree holder. The aforesaid order came to be challenged by the judgment debtor before this Court by way of Civil Revision Application no. 399 of 2004, which came to be rejected by this Court vide its judgment and order dated 24.03.2005. This fact was well within the knowledge of the petitioners (judgment debtors) of Special Civil Application no.14098 of 2019, but for reasons best known to them, they have not disclosed it in the petition.
16.2 It is true that the order of the Executing Court passed on 29.04.2004 has been placed with the petition, but there is complete silence about the challenge of said order before this Court and having lost in such challenge.
16.3 The judgment debtor has even not disclosed the material fact that the original judgment and decree dated 22.02.1989 came to be challenged by way of Regular First Appeal no.219 of 1996 along with a delay application being Page 40 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Civil Application No.521 of 1996, which came to be rejected on 09.03.1998.
16.4 The judgment debtor has even not disclosed the fact that after the rejection of its revision application by this Court, the decree holder had filed an application below Exhibit 156 for the appointment of Court commissioner for execution of sale deed, which was objected by the obstructor by filing an obstruction application below Exhibit 159, 162, and 164, and the order passed thereon by the Executing Court. 16.5 According to this Court, all the aforesaid suppression of facts are material suppression goes to the root of the matter to decide the controversy involved in the petition, and only on this ground alone, the Special Civil Application No.14098 of 2019 filed by the judgment debtor requires to be dismissed with exemplary costs.
16.6 Learned advocate Mr. R. D. Dave, appearing for the judgment debtor, during course of his submission, had shown his complete ignorance about the aforesaid facts and the order passed by this Court. Even though a detailed affidavit in reply Page 41 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined is filed by the decree holder in the petition pointing out such suppression, which I would not like to reproduce its contents as I do not want to burden this judgment.
16.7 Nevertheless, the fact remains that the judgment debtor was a party to the aforesaid revision as well as the first appeal, which requires to be disclosed when they have filed the present petition. Having not disclosed the true and correct facts in the petition, and learned advocate Mr. Dave has pleaded his ignorance, which is not digestible in light of the fact that the reply of the decree holder discloses all the suppression of material facts are already on record. 16.8 Likewise, it was also the duty of the obstructor to place on record its earlier obstruction applications filed below exhibits 159, 162, and 164, and the orders passed thereon by the Executing Court. However, having not placed these in its petition but as an eyewash and to come out from the suppression of material facts, the obstructor has only placed on record the order passed by this Court dated 24.01.2012 in Special Civil Application No. 11781 of 2006 by not disclosing Page 42 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined any facts regarding its applications filed at Exhibit 162/164. Such conduct of the obstructor is deplorable. When the party is aware of its application being filed and decided by the Court, it was the duty of the party to place a complete set of facts on record.
16.9 It is further to be observed that learned advocate Mr. Shelat, during the course of his submission, had contended that applications filed below exhibits 162 and 164 are pending and without deciding such applications, the impugned order has been passed by the Executing Court. As stated herein above, copy of such applications filed at Exhibit 162/164 were not submitted by the obstructor with its petition but placed by the subsequent purchaser in paper-book. So, after getting reply submissions made by learned advocates appearing for the decree holder/the subsequent purchaser, later on, at the end of hearing, learned advocate Mr. Shelat had accepted that when the impugned order was passed by the Executing Court, nothing was pending so far as the obstructor is concerned. If it be so, there was no reason for the obstructor to file the Page 43 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined present petition. Such petition by the obstructor is also suppressing said material facts/documents is nothing but frivolous litigation who, having purchased the suit property in the midst of execution proceedings, has no right to obstruct it. 16.10 So, considering aforesaid facts and conduct of the petitioners, both these petitions requires to be dismissed on ground of suppression of such facts alone with exemplary costs.
17. APPRECIATION OF SUBMISSIONS ON MERIT.
18. Even assuming for the time being that the aforesaid suppressions are not material in nature, even then, the objections, which are raised by the judgment debtor/obstructor are barred by the principle of Res-judicata/Constructive Res- judicata. It remains undisputed that in the earlier round of litigations the Executing Court and this Court, having dealt with all the objections of the judgment debtor and obstructor vide its order dated 29.04.2004, 24.03.2005, 13.01.2006 and 24.01.2012 respectively, later on, neither the judgment debtor nor the obstructor can be allowed to raise any objections, Page 44 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined which are barred by principles of Res-Judicata/Constructive Res-Judicata, Estoppel and Waiver.
18.1 As per plain reading of Section 11 of the Code, 1908, more particularly its Explanation VII, it would also clear all doubts in anyone's mind. The relevant provision of Section 11 of the Code, 1908 reads as under:-
"11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. .........
Explanation VII. -- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. ....."
18.2 At this stage, it is profitable to rely upon the decision of the judgment of the Honorable Supreme Court of India in the case of Barkat Ali (supra), wherein, it has been held as under:-
"11. There is no dispute and it has not been agitated that the Page 45 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined order for proceeding by the judgment under Order 21 Rule 22 amounts to a decree under Section 47 CPC and it is appealable as a decree i.e. to say it is not an appeal against the interim order but an appeal against the decree which is provided against the final order. It means that at the different stages of the execution, orders passed by the executing court have attained finality unless they are set aside by way of appeal before the higher forum. Otherwise they bind the parties at the subsequent stage of the execution proceedings so that the smooth progress of execution is not jeopardised and the stage which reached the finality by dint of various orders of Order 21, operates as res judicata for the subsequent stage of the proceedings. Since the order passed at different stages itself operates as a decree and is appealable as such, the same cannot be challenged in appeal against subsequent orders also, because appeal against an order passed under Order 21 Rule 22 does not amount to appeal against order at initial stage, but amounts to a decree finally determining the question. That is why no appeal against orders made under Order 21 has been provided under Order 43.
12. In this background, where a judgment-debtor has an opportunity to raise an objection which he could have raised but failed to take and allowed the preliminary stage to come to an end for taking up the matter to the next stage for attachment of property and sale of the property under Order 21 Rule 23 which fell within the above principle, the judgment-debtor thereafter cannot raise such objections subsequently and revert back to earlier stage of proceedings unless the order resulting in termination of preliminary stage which amounts to a decree is appealed against and order is set aside or modified.
13. The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage.
14. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] it was observed as follows : (AIR pp. 999-1000, paras 10-11) "10. ... Scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. ...
11. ... where the principle of res judicata is invoked in Page 46 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides, the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and the relevant factors to be considered before the principle is held applicable."
15. In Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941] it was observed as follows : (AIR pp. 943-44, para 8) "8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings."
(Emphasis supplied).
18.3 It is also apt to rely upon the decision of Hon'ble Gujarat High Court in the case of Ganchi Laxmichand Ambaram vs. Tulsidas Madhavdas, reported in (1962) GLR 1032 : 1962 SCC OnLine Guj 20, wherein (Hon'ble Mr. Justice P.N. Bhagwati, His Lordship then was) after appreciating the principle laid down by the privy council in para- 9, 10, 11 & 12 held thus, as under :-
"9. The Privy Council thus applied the principle of constructive res judicata in execution proceeding without any qualification or reservation. The reason which commended itself to the Privy Council for the application of the principle of constructive res judicata was that if a party does not through his own default raise whatever plea he can in a previous proceeding, he cannot be permitted to raise the same plea in a subsequent proceeding Page 47 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined merely because he neglected at the proper stage in the previous proceeding to raise the plea of which he subsequently wants to avail himself. Now this reason would apply equally whether the party appears at the hearing of the previous proceedings and omits to raise a certain plea or whether the party does not appear at the hearing of the previous proceeding and, therefore, does not raise the plea. I am, therefore of the opinion that according to this decision of the Privy Council the principle of constructive res judicata must apply to the execution proceeding without any qualification of reservation such as the one laid down by the High Court of Bombay in 45 Bom LR 519: (AIR 1943 Bom 252) (supra), provided of course that the requisite conditions for the applicability of the principle are satisfied.
10. The Supreme Court has also laid down in clear and unmistakable terms in Mohanlal v. Benoy Krishna, (1952) 2 SCC 648: AIR 1953 SC 65 that the principle of constructive res judicata applies to execution proceedings. As observed by Ghulam Hasan, J., in that case "that the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. See Ananda Kumar v. Sheikh Madan, 38 Cal W.N. 141: (AIR 1934 Cal 472) and 'Mahadeo Prasad v. Bhagwat Narain Singh', AIR 1938 Pat 427."
11. Having regard to these decisions of the Privy Council and the Supreme Court, I must refuse to follow the decision of the High Court of Bombay in 45 Bom LR 519 (AIR 1943 Bom 252) (supra) even though that is a decision of a Division Bench of the Bombay High Court.
12. I, therefore, take the view that if the necessary conditions are satisfied the principle of constructive res judicata applies to execution proceedings in all cases without any discretion in the Court whether or not to apply the same having regard to the facts and circumstances of a particular case. This being the position it is clear that the executing Court having made the order on the notice under Order XXI, Rule 22, directing issue of warrant for attachment, it was not open to the applicant to raise at a subsequent stage of the proceedings any conditions against the execution of the decree."
(Emphasis supplied.) Page 48 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined 18.4 After going through the ratio of the aforesaid two decisions, it is clear as a day that once the judgment debtor and or obstructor have lost their right to object to the decree in earlier round of litigations in the execution proceeding, which was available to them, later in point of time, they are not allowed to raise any new objections which were either raised and failed or available to be raised but having not raised, is barred by the principle of Res-judicata and Constructive Res-judicata.
18.5 Thus, in view of the aforesaid facts and the law laid down in the decision of the Honorable Supreme Court of India in the case of Barkat Ali (supra) and Ganchi Laxmichand Ambaram (Supra), I am of the view that the objections, which are raised by the judgment debtor/obstructor below Exhibit 203, 214, 215, 216 and 222 are unsustainable and require to be rejected by applying the principle of Res-judicata/Constructive Res-Judicata. 18.6 Furthermore, the Executing Court has dealt with all these objections in detail. As such I am in complete agreement Page 49 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined with the reasons so recorded by the Executing Court in its impugned order while rejecting such objections. Even otherwise, merely a second view is possible which is none in present case, would not be a ground to interfere by this Court with the impugned order while exercising its power under Article 227 of the Constitution of India.
19. It is worth to note that on 15th October 2015, the executing court directed the decree holder to submit a draft sale deed as per the decree, in accordance with Order XXI Rule 34 of the CPC, with the executing court. Exhibit 203 is an objection filed by the judgment debtor on 23.12.2016 against the draft sale deed submitted on 15.12.2014. 19.1 Exhibit 214 is a written submission and further objection of the execution of sale deed, contending, inter alia, that having not deposited the amount as per the decree, in view of Section 28 of the Specific Relief Act read with Section 148 of the Code 1908, neither the decree holder nor the court commissioner has the power to execute any sale deed, especially, when the sale deed is already executed in favour of Page 50 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined the obstructor. As such this objection is beyond scope of Order XXI Rule 34 of the CPC as the judgement debtor could have objected terms of draft sale deed but not the execution of sale deed itself.
19.2 The applications, which were filed at Exhibit 215, 216, and 222 by the judgement debtor were not entertained, being not tenable at this juncture, in view of the order passed below Exhibit 1 in the execution petition vide its order dated 29-04- 2004.
19.3 So far as the obstructor is concerned, although no separate objections were filed, he had raised his oral argument before the executing court that necessary permission under ULC, as per the decree, was not obtained by the decree holder. The same was rejected, as already answered while deciding the earlier objection, and having passed an order below Exhibit 1 in the execution petition vide its order dated 29-04-2004.
19.4 So far as the objections at Exhibit 203 and 214 are concerned, the executing court has found that payment of the Page 51 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined consideration amount is not time-barred, as the consideration amount is fixed by the trial court, and as per the order of the trial court, the decree holder has deposited the said consideration in the Court on 01.7.2004. Because of the aforesaid reasons, such objections were turned down by the executive court.
19.5 So far as objections in relation to the non-executable decree on the ground that the obstructor has purchased the suit property by way of registered sale deeds is concerned, the suit property is purchased during the pendency of execution petition, the executing court has found that such a transaction is hit by Section 52 of the Transfer of Property Act, and when the obstructor has already withdrawn his objection at Exhibit 159 and objections at Exhibit 162 and 164 were already rejected in the earlier round, the obstructor cannot retain the possession of the suit property.
20. So far as the arguments canvassed by learned advocate Mr. Dave regarding Section 28 of the Specific Relief Act is concerned, it is a misconceived submission on the part of Page 52 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined learned advocate Mr. Dave. As such unmindful to the provisions of Section 28 of the Specific Relief Act, 1963, such submission was made. To appreciate such submission, I would like to reproduce Section 28 of the Specific Relief Act.
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.--(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require..........."
20.1 Learned advocate Mr. Dave in support of his said submission has relied upon decision of P. Shyamala (supra) and Prem Jeevan (supra), wherein Honourable Supreme Court had an occasion to deal with such type of objections, albeit, in the said cases, the independent application of judgement creditor as well as judgement debtor were submitted as required under section 28 of Specific Relief Act which was adjudicated by the Court below including Honourable Supreme Court which is not Page 53 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined the case on hand then, ratio of P. Shyamala (supra) and Prem Jeevan (supra), would not stricto senso applied in the present case. The relevant facts of P. Shyamala (supra) reproduced as under:-
"2.2. After a period of 853 days from the date of judgment and decree dated 12.10.2013 passed by the trial Court, the original plaintiff - respondent herein filed an application be- fore the trial Court under Section 148 of the Code of Civil Procedure (for short, 'CPC') and Section 28 of the Specific Relief Act being I.A. No. 732/2016 in O.S. No. 291/2013 and prayed for extension of time to deposit the balance sale con- sideration which the plaintiff was required to deposit on or before 21.10.2013, as per the judgment and decree dated 12.10.2013. At this stage, it is required to be noted that af- ter the ex-parte judgment and decree, the mother of the ap- pellant - original defendant died on 13.01.2015 and the ap- pellant herein being legal heir of the original defendant was brought on record. Simultaneously, the appellant, being the legal representative of the original defendant, filed an appli- cation being I.A. No. 914/2017 in O.S. No. 291/2013 under Section 28 of the Specific Relief Act, 1963 to rescind the Agreement to Sell dated 9.5.2012....."
In Prem Jeevan (supra) also facts so observed as un- der, "[5] The judgment-debtor filed an application before the Ex- ecuting Court objecting to the execution of the decree as the amount in question was not deposited by the decree-holders within the stipulated time, rendering the decree inexecutable in the absence of extension of time."
(Emphasis supplied).
20.2 From the records and submissions of learned advocate Mr. Dave, it is not made out that any such application was filed by the judgment debtor - vendor. If it be Page 54 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined so, I fail to understand how such a provision of law would be applicable to the facts of the present case and could have been pressed into service.
20.3 This would only show how judgement debtor is consuming the precious judicial time in such types of matters wherein there are no such foundational facts germane from the record.
21. As far as the payment of balance sale consideration is concerned, neither the original decree nor order dated 29.04.2004 passed by the Executing Court, directed the decree holder to deposit the amount within a stipulated time as there were certain permissions ordered to be obtained by the judgement debtor before execution of sale deed which they had never obtain. As such when no time limit has been fixed by the Court in the decree which was sought to be executed, I am of the view that Section 28 of the Specific Relief Act would not apply. Even otherwise in absence of any application at the instance of the judgment debtor, such objection could not have been decided. Furthermore, decree holder within short period Page 55 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined of time after allowing his Execution vide its order dated 29.04.2004 had deposited balance sale consideration on 01.07.2004 then, such argument is not available to judgement debtor that too at the stage of execution of sale deed as this could have been agitated at time of passing the order dated 29.04.2004 but reasons best known to judgement debtor not raised then, in view of Barkat Ali (Supra) and Ganchi Laxmichand Ambaram (Supra) cannot be raised.
22. The objections regarding not getting permission by the Court commissioner of authority/collector are concerned, I am of the view that when the decree holder is an agriculturist, which has been clearly comes out from reading para-21 of the original judgment passed in the aforesaid suit and the plain reading of the original Execution Petition wherein the status of the decree holder is shown as an agriculturist, permission was not at all required for the execution of the sale deed.
23. Moreover, once the judgment debtor has failed to comply with the part of the decree and not fulfilled his condition, later on, he cannot be allowed to object to the execution of Page 56 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined the sale deed on any other grounds like non-obtaining permission, sanction, etc. Further, when objection regarding applicability of ULC to land in question is already decided by executing Court in first round itself, again such objection could not have been raised by anyone. These all attempts are nothing but to derail the execution at any cost, thereby depriving the decree holder to get the fruits of the decree.
24. The conduct of the judgment debtor throughout the execution proceeding would be suggesting only one fact that by any means, the judgment debtor has tried frustrate the decree as after having lost in objections, executed registered sale deed, albeit, through power of attorney in favour of the obstructor. Once the judgment debtor has executed the sale deed in favour of the obstructor, they have no right to object to the execution.
25. Nonetheless, having so observed earlier, the law on the issue germane in the petition is well settled, thereby the petition, which was filed by the judgment debtor, lacks merits. It is filed with the suppression of material facts. The petitioner Page 57 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined
- judgment debtor, has not come with clean hands. Even the learned advocate appearing for the judgment debtor has pleaded ignorance about all these suppressions, which is deplorable in light of the fact that the affidavit in reply filed by the decree holder reveals all such suppressions.
26. Keeping all these factors into account and the fact and law as discussed herein above, this Court finds that the special civil application filed by the judgment debtor requires to be dismissed with exemplary costs, which is quantified to Rs. 1,00,000/-to be paid by the judgement debtor within period of four weeks from today. The petitioner - judgment debtor is hereby directed to pay a sum of Rs. 50,000/- to the decree holder, i.e., Respondent no.1, and the remaining Rs. 50,000/- to be paid/deposited with the Gujarat State Legal Services Authority, Ahmedabad, within a period of four weeks from today. It is open for respondent No.1 as well as the Gujarat State Legal Services Authority to recover the amount of costs from the petitioner by way of alien recovery in accordance with law.
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27. As far as the petition filed by the obstructor is concerned, when the obstructor, having withdrawn his obstruction filed below exhibit 159 and its applications at Exhibit 162/164 were rejected in an earlier round of litigation, later in point of time again, it cannot be allowed to raise objections against the impugned application filed below Exhibit 184 by the decree holder. The principle of Res-judicata/Constructive Res-Judicata would also squarely apply to the obstructor. At the cost of repetition, the obstructor, having consciously withdrawn his obstruction application filed below Exhibit 159 and his other obstruction applications filed below exhibits 162 and 164 were rejected by the Executing Court wherein the prayer was made to the effect that the decree holder may not be granted any relief in relation to the execution of the sale deed for the suit property, now cannot object such prayer when the decree holder has filed the impugned application at Exhibit 184 requesting for execution of the sale deed in his favour.
28. Moreover, the submissions which are so canvassed by Page 59 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined learned advocate Mr. Shelat, nothing has been whispered by the obstructor while submitting its objection applications Exhibits 159/162/164 and objecting Exhibit 184, an impugned application. So, it appears that for the first time, a new plea has been raised before this Court. This is not permissible in view of what has been held by this Court in Ganchi Laxmichand Ambaram (Supra), I am of the view that the objections, which are now raised by the obstructor in the petition are barred by the principle of Constructive Res- Judicata.
28.1 Once the objections of the judgment debtor have been examined and dealt with by the Executing Court, and the objections were rejected in the years 2004-2005, nothing further remains in the execution except the execution of the sale deed through the Court commissioner, which has been done so by way of the impugned order.
29. So far as the filing of civil suits by the judgment debtor and/or decree holder against the obstructor and those suits got dismissed are concern, decree in question and execution would Page 60 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined not automatically become nugatory. The right of the decree holder to enjoy the fruits of the decree flows from the decree itself, and after closely going through the original judgement and decree, I would not like to depart from the recourse adopted by the Executing Court for execution of the sale deed, as the suit property consists of a total area of 1 acre and 5 gunthas, which is around 5059 sq.mts., for which the Court commissioner has executed the sale deed in favour of the decree holder in turn executed registered sale deed in favour of the subsequent purchaser.
30. At this juncture, it is worth taking note of the decision of the Hon'ble Supreme Court of India in the case of Silverline Forum Private Limited (Supra), wherein, it was held as under:-
"[10] It is true that R. 99 of O. 21 is not available to any person until he is dispossessed of immovable property by the decree- holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing Court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point Page 61 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.
(11) When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution Court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. (12) The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
[14] It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to Page 62 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined adduce evidence for such determination if the Court deems it necessary."
(Emphasis supplied).
31. It is also profitable to rely upon the decision of Usha Sinha (Supra), wherein in paragraph 25, it has been held as under:-
"[25] We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated."
(Emphasis supplied).
32. Thus, in view of the aforesaid ratio of said decisions, if applied to the facts of the present case, there is no substance or merit in the objections of the obstructor, who has purchased the suit property in the midst of execution.
33. Though learned senior counsel Mr. Sanjanwala has requested this Court to hold that the obstructor, having withdrawn their obstruction application below exhibit 159 and Page 63 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined lost in their applications filed below exhibits 162 and 164, has no right to file any obstruction application post the impugned order, I am of the view that no such prayer has been made in the petition filed by the obstructor regarding such obstruction to be decided by the Executing Court. So, I would not like to decide such aspect of the matter, as the same is beyond the prayer of the petition filed by the obstructor. Thus, I have not dealt with judgements so cited by the learned advocate Mr. Shelat appearing for the obstructor in regards to its right to object the decree as claimed to have been filed under Order XXI Rule 97 to 99, read with Section 47 and 151 of the Code of Civil Procedure, 1908, which is claimed to be pending as on date to be decided by the Executing Court.
34. Having so observed, the entire set of events and the conduct of the obstructor, who has also played its own role in delaying the execution of the decree and having not disclosed the true and correct facts thereby not submitted in its petition its earlier objection applications filed below exhibits 159/162/164 and order passed thereon, wherein the obstructor Page 64 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined lost either before the Executing Court or before this Court, I am of the view that such a petition filed by the obstructor is also required to be dismissed with costs, which is quantified to Rs.1,00,000/-. Such costs shall be paid by the petitioner (obstructor) of Special Civil Application No. 19656 of 2019 within a period of four weeks from today. Out of Rs.1,00,000/-, a sum of Rs. 25,000/- shall be paid to the decree holder and Rs. 25,000/- to the subsequent purchaser each and the balance Rs. 50,000/- shall be paid/deposited with the Gujarat State Legal Services Authority, Ahmedabad, failing which, it is open for the decree holder, the subsequent purchaser, and the Gujarat State Legal Services Authority, Ahmedabad to recover it from the petitioner-obstructor as an alien recovery in accordance with the law.
35. It is pertinent to note that none of the judgments so relied upon by the respective learned advocates appearing for the petitioners would not be applicable to the facts of the present case, so discussed hereinabove.
36. Thus, the executing court has passed well-reasoned order, Page 65 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined dealt with all these objections raised by the judgment debtor and obstructer respectively. As stated herein above, I am in complete agreement with the impugned order passed by the executing court who has not travelled beyond the decree. CONCLUSION
37. After considering the entire set of facts, submissions of respective parties, and after going through the judgment, decree, earlier orders passed either by the Executing Court and or this Court, as well as previous applications and objections filed by the judgment debtor and obstructor, I am of the view that there is no gross error much less any jurisdictional error committed by the Executing Court while rejecting the objections of the judgement debtor filed below Exhibits 203, 214, 215, 216 and 222, thereby allowed impugned application of the decree holder filed below Exhibit 184.
38. According to this Court, Executing Court has not travelled beyond the decree while passing the impugned order. As such objections/plea either raised by the judgement debtor and or obstructor are barred by principle of Res-judicata/Constructive Page 66 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025 NEUTRAL CITATION C/SCA/19656/2019 CAV JUDGMENT DATED: 18/02/2025 undefined Res-judicata.
39. Thus, in view of aforesaid, no interference requires of this Court while exercising its power under Article 227 of the Constitution of India.
40. The upshot of the aforesaid discussion, observation, and reasons, I am of the view that both these petitions either filed by the Judgment debtor or the obstructor lack merit and require to be dismissed, and the same is hereby dismissed with the costs i.e. Rs.1,00,000/ each to be deposited and paid as aforesaid. Notice discharged. The connected Civil Application is also disposed of accordingly.
41. The registry shall send a copy of this judgment to the Gujarat State Legal Services Authority, Ahmedabad for its further action if so require.
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS Page 67 of 67 Uploaded by MOHD MONIS(HC01900) on Tue Feb 18 2025 Downloaded on : Tue Feb 18 22:43:45 IST 2025