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Gujarat High Court

Jayantibhai Ambalal Patel vs Pinakinbhai Somabhai Panchal on 29 June, 2018

Author: N.V.Anjaria

Bench: N.V.Anjaria

        C/SCA/6618/2017                                         CAV ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 6618 of 2017
==========================================================

JAYANTIBHAI AMBALAL PATEL Versus PINAKINBHAI SOMABHAI PANCHAL ========================================================== Appearance:

MR SP MAJMUDAR(3456) for the PETITIONER(s) No. 1 MR NIRAV K PADHIYAR(5678) for the RESPONDENT(s) No. 1,2,3,4,5,6,7,8 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 29/06/2018 CAV ORDER Heard learned advocate Mr.S.P. Majmudar for the petitioner and learned advocate Mr.Nirav Padhiyar for the respondents.

2. By means of the present petition, the petitioner has challenged order dated 09th February, 2017 passed by learned 2nd Additional Civil Judge, Deesa, being an order below Exh.1 in Regular Execution Application No.08 of 2016.

3. Regular Civil Suit No.213 of 2015 instituted by the plaintiff came to be disposed of as per decree dated 07th October, 2015 which was passed upon a compromise purshis Exh.21 submitted by the parties. The parties had arrived at a compromise settling the dispute which was converted into decree.

3.1 The suit of the plaintiff was for the relief of permanent injunction to restrain the defendants Page 1 of 5 C/SCA/6618/2017 CAV ORDER from constructing a temple. The parties - both plaintiff as well as defendants - had been the residents of residential township known as Tirupati Township at Deesa.

3.2 The terms of the compromise purshis which was translated into decree of the Court provided inter alia firstly that the open common plot space which was located between the boundary of the house of the plaintiff upto the proposed temple admeasuring 43 ft., was required to be kept open and that the parties would not put up any permanent construction thereon and shall not even erect the shed. Secondly, it was provided that a boundary of steel pipes leaving certain place for pradakshina of temple, shall be erected between the proposed temple and the common plot. It was thirdly agreed to be made part of the decree that the status of the wall of the common plot shall be retained and maintained. It was agreed that if the said wall gets damaged or broken in any way, the same shall be repaired. It was next stipulated between the parties that the height of the temple as well as height of the Dhaja (flag) of the temple shall be kept to such an extent that their shadow does not reflect so as to extend to anybody's residential house. If the shadow of temple or flag of the temple is reflected on any of the residential property, the height of the peak of the temple or flag shall be reduced to that extent.

3.3 For executing the aforesaid compromise decree, Execution Application was filed on 22nd April, Page 2 of 5 C/SCA/6618/2017 CAV ORDER 2016 and subsequently came to be transferred to be dealt with by the learned 2nd Additional Civil Judge, Deesa.

4. The learned Judge declined to proceed with the Execution Application and dismissed the same. What was reasoned by the learned Judge was inter alia as under.

"... The plaintiff has also produced photographs of the temple. But the photographer has not been examined. It seems that the bone of contention in the present case is that as per the compromise prusis Exh.21 (Mark 4/4), the parties had agreed to erect the temple in a way that the shadow of the temple including its "dhaja" shall not fall on any body's house and in case it falls on any house, the height of the temple or "dhaja" shall be decreased to that extent. It is noted that the documents produced vide Exh.4 by the plaintiff are also not exhibited. The present Execution petition was filed on 22/4/2016. The temple is under construction. There is no mention of precise height of the temple in compromise pursis filed by the parties. At the same time, there is no mention of the present height of the temple in execution petition."

4.1 The Court observed further that precise measurement of height of the temple or that of Dhaja was not available. Therefore, the Court was not able to reach to conclusion about the extent of height and its shadow. The trial court further observed that the plaintiff had a plot and did not use but plaintiff was going to construct house in the plot as averred by him. It was further reasoned that plaintiff had produced certificate in support of his say but the write of the document was not examined.

5. It is required to be noted here that temple was not constructed and it was under construction.

C/SCA/6618/2017 CAV ORDER The temple was proposed to be constructed and in that context the aforesaid compromise was agreed between the parties resulting into decree regarding the height of the temple peak and reflection of its shadow etc. 5.1 From the reasons supplied by the court below it was manifest that the Court misdirected itself. The reasons recorded to refuse to execute the compromise decree were not relevant at all. The reasons and the grounds mentioned by the learned Judge were not germane for deciding the Execution Application. There was nothing to suggest that the decree was not executable. Learned executing court could not point out anything on this score except irrelevant aspects. Decree was passed by the Court based on the compromise of the parties.

5.2 The executing court has to execute the decree at its best and to whatever extent possible. In supplying the reasons in refusing the application of the decree holder to execute the decree, the Court below committed a clear error. In view of above, the proper course would be to remit back the matter to the court below.

6. Resultantly, order dated 09th February, 2017 passed by learned 2nd Additional Civil Judge, Deesa, below Exh.1 in Execution Application No.08 of 2016 is hereby set aside. The proceedings of Execution Application No.08 of 2016 are remitted back to the trial court for taking a fresh decision. The exercise may be completed expeditiously.

        C/SCA/6618/2017                                    CAV ORDER



7.           The         petition   is    allowed   to   the   aforesaid
extent.
                                                     (N.V.ANJARIA, J)
Anup




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