Gujarat High Court
Patel Dashrathbhai Dahyabhai Thro P O A ... vs Patel Prahladbhai Khodidas & 2 on 28 July, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/3364/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3364 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PATEL DASHRATHBHAI DAHYABHAI THRO P O A PATEL PRAMODBHAI & 2
Versus
PATEL PRAHLADBHAI KHODIDAS & 2
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Appearance:
MR MR NILESH PANDYA, ADVOCATE WITH AMIT C NANAVATI,
ADVOCATE for the Petitioner(s) No. 1 - 3.2
MR KEYUR A VYAS, ADVOCATE for the Respondent(s) No. 2 - 3
RULE SERVED for the Respondent(s) No. 1.2 - 1.5
UNSERVED-EXPIRED (R) for the Respondent(s) No. 1.1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 28/07/2017
ORAL JUDGMENT
1. The petitioners, who are decree holder, have filed the present petition under Articles 226 and 227 of the Constitution challenging the order dated 15.03.2013 passed by the learned Page 1 of 7 HC-NIC Page 1 of 7 Created On Mon Aug 21 05:39:22 IST 2017 C/SCA/3364/2013 JUDGMENT 2nd Additional Civil Judge, Kadi below application at Exhibit 31 in Regular Darkhast No.42 of 2005.
2. The petitioners had filed Special Civil Suit No.290 of 1993 against the respondent nos.1, 1/1 to 1/5 for specific performance of the contract in connection with registered agreement to sale (banakhat) dated 16.01.1982 and alternatively claimed Rs.1,50,000/- as damages. In the said suit, the following order was made.
"The plaintiffs to get the sale deed of the suit property executed by the defendants, on payment of the rest of the consideration, and to acquire the possession of the suit property. If the defendants found unable to do so, and restrained by any law, for not passing the sale deed for the suit property, then the plaintiffs to recover the sum of Rs.16,000/- + Rs.14,000/- = Rs.30,000/- from the defendants along with the interest thereon at the rate of 12% from the date of the suit till realisation from the defendants, and their movable or immovable properties.
The decree is ordered to be drawn in terms of above.
3. For execution of such decree, the above referred Regular Darkhast is pending. It appears that in the execution proceedings, respondent nos.2 and 3 have raised their objections at exhibit 19 stating that they are owner and in possession of the land bearing survey no.504/2 and in respect to such land, the decree was null and void and ineffective and could not be executed against them. They also raised objections that since, the land bearing survey no.504/3 was of new tenure, the sale deed could not be executed. They, therefore, prayed that the first part of the decree be cancelled Page 2 of 7 HC-NIC Page 2 of 7 Created On Mon Aug 21 05:39:22 IST 2017 C/SCA/3364/2013 JUDGMENT and execution be proceeded for execution of the second part of the decree. It appears that pending darkhast, the petitioners filed Regular Civil Suit No.132 of 2007 against respondent nos.2 and 3, but such suit was disposed of on the basis of the withdrawal pursis at exhibit 22 on 03.03.2008. The petitioners then filed Regular Civil Suit No.208 of 2008 seeking declaration that the withdrawal of the earlier suit being Regular Civil Suit No.132 of 2007 was by keeping them in dark and was against their interest and the withdrawal pursis was illegal and to cancel the order of withdrawal of suit made on the basis of the withdrawal pursis. Since such suit is pending, respondent nos. 2 and 3 preferred an application Exhibit 31 in the darkhast proceedings of the petitioners to stay the proceedings of the darkhast till Regular Civil Suit No.208 of 2008 is finally decided. The learned Judge has partly allowed the application Exhibit 31 by impugned order and has stayed the proceedings of Regular Darkhast No.42 of 2005 till Regular Civil Suit No.208 of 2008 is finally decided.
4. Learned advocate Mr.Nilesh Pandya appearing with learned advocate Mr.Amit Nanavati for the petitioners submitted that at the instance of third parties the darkhast proceedings could not have been stayed by the learned Judge. Mr.Pandya submitted that the limited right available to the third parties was to get their objections decided in the proceedings of the darkhast. Mr.Pandya submitted that since they have not filed any suit against the petitioners - decree holder concerning the subject matter of the darkhast, they have no right to get the proceedings of darkhast stayed. Mr.Pandya submitted that it is only either the Court which passed the decree or the Appellate Court has jurisdiction to stay the execution of the decree, but the Darkhast Court cannot stay the proceedings of darkhast unless the case is made out for stay of the darkhast Page 3 of 7 HC-NIC Page 3 of 7 Created On Mon Aug 21 05:39:22 IST 2017 C/SCA/3364/2013 JUDGMENT proceedings under Order XXI of the Code.
5. Learned advocate Mr.Keyur Vyas appearing for the respondents, on the other hand, submitted that though respondent nos.2 and 3 are third parties in the darkhast proceedings, they are the persons who claim right, title and interest in the land bearing survey no.504/2 and also entitled to object execution of the decree for survey no.504/3 as said land is of new tenure land. Mr.Vyas submitted that against such objectors in the darkhast when the petitioners filed Regular Civil Suit No.132 of 2007 in connection with the above lands, and when they did not pursue the suit, they could be said to have accepted the rights of respondent nos.2 and 3 in the said properties and subsequently, when they filed Regular Civil Suit No.208 of 2008 seeking declaration that the withdrawal pursis based on which the suit is withdrawn was illegal, such suit should be first proceeded and decided. Mr.Vyas submitted that pending the suit, if the darkhast proceedings are allowed to be proceeded, the respondent nos.2 and 3 shall suffer great prejudice and, therefore, the Darkhast Court has committed no error in staying the darkhast proceedings in exercise of powers under Order XXI, Rule 29 of the Code.
6. The Court having heard learned advocates for both the sides finds that undisputably, there is no suit filed by the decree debtor against the petitioners - decree holder. The respondent nos.2 and 3 at whose instance, the learned Judge has stayed the darkhast proceedings are the third parties - obstructionists, who have raised objections in the darkhast proceedings filed by the petitioners for execution of the decree passed against respondent no.1, 1/1 to 1/5. It appears that after the petitioners filed Special Darkhast No.152 of 1999 Page 4 of 7 HC-NIC Page 4 of 7 Created On Mon Aug 21 05:39:22 IST 2017 C/SCA/3364/2013 JUDGMENT which was renumbered as Regular Darkhast No.42 of 2005 on its transferred to the present Court where it is pending, the petitioners found that respondent nos.2 and 3 were claiming rights in the land bearing survey no.504/2 and, therefore, filed Regular Civil Suit No.132 of 2007 to declare and that sale deed made by original defendants - respondent nos.1/1 to 1/5 in favour of respondent nos.2 and 3 was illegal from inception and that they have no right or title in the suit land and for permanent injunction restraining them from transferring, alienating or creating any third party interest in the suit land. Such suit was alleged to have been withdrawn without the knowledge of the petitioners and, therefore, the petitioners filed second suit being Regular Civil Suit No.208 of 2008 seeking declaration that the withdrawal pursis was illegal and to set aside the order made for withdrawal of the earlier suit being Regular Civil Suit No.132 of 2007.
7. The Court finds that filing of the first suit as well as the second suit by the petitioners is no ground available to respondent nos.2 and 3 to seek the stay of proceeding of darkhast where the petitioners have sought execution of the decree passed in their first suit being Special Civil Suit No.290 of 1993 against respondent nos.1, 1/1 to 1/5. If the respondent nos.2 and 3 have acquired any right in property bearing survey no.504/2, it is for them to establish when their objections are decided in the darkhast proceedings. Simply because, the petitioners had preferred Regular Civil Suit No.132 of 2007 which was allegedly withdrawn on the basis of the withdrawal pursis, such would not prevent the petitioners from executing the decree passed in their first suit. Therefore, pendency of Regular Civil Suit No.208 of 2008 for declaration that the withdrawal pursis was illegal and to seek cancellation of the order made on the basis of the withdrawal pursis in earlier Page 5 of 7 HC-NIC Page 5 of 7 Created On Mon Aug 21 05:39:22 IST 2017 C/SCA/3364/2013 JUDGMENT suit, would not be a ground available in law for staying darkhast proceedings of the pending darkhast being Regular Darkhast No.42 of 2005. In the facts situation obtainable, the learned Judge has misdirected himself in relying on the provisions of Order XXI, Rule 29 of the Code to stay the proceedings of darkhast. Rule 29 of Order XXI of the Code reads as under :
29 . Stay of execution pending suit between decree-holder and judgment-debtor-- Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court], on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided :
[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.] Mode of execution.
8. As per the above provisions, the proceedings of the darkhast could be stayed, where, the suit is pending in any Court against the holder of the decree of such Court on the part of the person against whom the decree was passed. Such is not the fact situation obtainable in the present case. Rule 26 of Order XXI also gives the powers to the Executing Court to stay the execution of the decree for a reasonable time to enable the judgment debtor to apply to the Court by which the decree was passed or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, or for an order to stay the execution or for any other order relating to the decree or the execution. Under this provision, the Executing Court has limited power to stay the execution of the decree only to enable the judgment debtor to apply for an order to stay execution of decree. Therefore, in neither of the above provisions, the third party obstructionist to the Page 6 of 7 HC-NIC Page 6 of 7 Created On Mon Aug 21 05:39:22 IST 2017 C/SCA/3364/2013 JUDGMENT execution of the decree is made entitled to ask for the stay of the execution proceedings. In such view of the matter, even if the petitioners had filed Regular Civil Suit No.132 of 2007 and second suit being Regular Civil Suit No.208 of 2008 is pending against the respondents, the proceedings of above referred darkhast could not be stayed at the instance of the third parties. By staying darkhast proceedings at the instance of the third parties, the learned Judge has exceeded his jurisdiction and, therefore, interference is called for in the impugned order by this Court in exercise of the powers under Article 227 of the Constitution.
9. Mr.Vyas has, however, relied on the judgment in the case of Maya Devi Vs. Lalta Prasad, reported in 2014 (1) GLH 666, wherein the Hon'ble Supreme Court has held that the objections in execution proceeding should be meaningfully decided.
The Court finds that the reliance placed on the above judgment shall be of no help to the respondents in the facts of the present case.
10. For the reasons stated above, the petition is allowed. The impugned order dated 15.03.2013 passed by the learned 2nd Additional Civil Judge, Kadi below application Exhibit 31 in Regular Darkhast No.42 of 2005 is quashed and set aside. Learned Judge shall now proceed with the darkhast proceedings in accordance with law. Rule is made absolute.
Sd/-
(C.L.SONI, J.) vijay Page 7 of 7 HC-NIC Page 7 of 7 Created On Mon Aug 21 05:39:22 IST 2017