Gujarat High Court
Anandkumar Dhansukhbhai Joshi vs Disha Niteshkmar Techwani on 9 January, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/13491/2022 ORDER DATED: 09/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13491 of 2022
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 13491 of 2022
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ANANDKUMAR DHANSUKHBHAI JOSHI
Versus
DISHA NITESHKMAR TECHWANI
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Appearance:
MR DHAVAL V SHAH(6634) for the Petitioner(s) No. 1
MR. HJ KARATHIYA(7012) for the Respondent(s) No. 1
MR. NISARG D SHAH(7299) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/01/2023
ORAL ORDER
1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 18.06.2022 passed by the learned 5 th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Gandhidham - Kutch, in Execution Petition No.74 of 2018 as well as the order dated 09.05.2018 passed by the learned 3 rd Additional Senior Civil Judge, Gandhidham - Kutch, in Special Civil Suit No.26 of 2015.
2. The brief facts leading to the filing of present petition reads thus:
2.1 The daughter of the petitioner i.e. Aakansha was having heart ailment and was required to be operated however, Page 1 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined because of financial condition of the petitioner, it was not possible for the petitioner to meet with the said expenses which was approximately Rs.10,00,000/-. The petitioner thought it fit to get his daughter operated and to collect the amount from his nearby friends and relatives. As the petitioner could not collect the required amount, the petitioner approached the respondent herein and requested for some help. The respondent herein asked for some security towards the said amount given to the petitioner and pursuant thereto, the petitioner executed one agreement to sale for his property being Tenament Unit No.'B', Plot No.47, Ward 9/A(F), Shree Odhavram Bhanushali (Gandhidham) Owner's Association situated at Gandhidham, Taluka & District : Gandhidham, on 27.01.2014 with a clear understanding that the said document is executed towards the security and as soon as the petitioner would repay the amount, the same would stand cancelled.
2.2 That, the respondent herein submitted an application before the President of the Society, for which an agreement to sale was executed and requested to enter her name in the record by saying that the original documents are missing and a public notice was published in the local news paper. It was stated that the amount borrowed by the petitioner herein from the respondent was repaid however, despite the aforesaid fact, taking advantage of the execution of the agreement in favour of the respondent herein, the respondent filed Special Civil Suit No.26 of 2015 before the learned Senior Civil Judge, Gandhidham, for specific performance for the suit property. It is further stated that in the cause title of the plaint, no specific Page 2 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined address of the petitioner has been given and only 'Ahmedabad' is stated. That, the notice was issued by the concerned Court, the same was served upon the petitioner at the address of suit property by affixing, as a result of which, the petitioner was not aware about the proceedings of the plaint and the suit proceeded ex-parte. It is stated that without properly appreciating the facts of the case, the 3 rd Additional Senior Civil Judge, Gandhidham - Kutch by order dated 09.05.2018, allowed the plaint. The said order is duly produced at Annexure - B to the petition, which is also a subject matter of challenge in the present petition.
2.3 The respondent herein, after the said order dated 09.05.2018 came to be passed in the Special Civil Suit No.26 of 2015, filed the Execution Petition No.74 of 2018 before the learned Senior Civil Judge, Gandhidham - Kutch. In the said petition also, the complete address of the petitioner herein was not stated. Notice came to be issued to the petitioner which came to be served to the petitioner and in pursuance to the service of the said notice, the petitioner appeared before the Court below and filed a detailed reply. The petitioner pointed out in the said reply that the amount, which was borrowed by the petitioner, was already repaid to the respondent herein. It is also stated that the concerned Court proceeded ex-parte behind the back of the petitioner. The said reply is duly produced at Annexure - C to the petition. It is the case of the petitioner that the respondent has committed fraud to the petitioner. The petitioner submitted complaint to the Superintendent of Police, Kutch as well as Gandhidham 'A' Page 3 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined Division Police Station on 18.10.2019 narrating the aforesaid incident and it was requested to lodge a complaint against the respondent. However, no action was taken on the said complaint by the police authorities. It is further stated that the petitioner filed a detailed representation to the Director General of Police, Gandhinagar, on 06.12.2019 making reference to the aforesaid complaints. A copy of the said complaint is duly produced at Annexure- D to the petition. It is stated that the learned 5th Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Gandhidham - Kutch, by order dated 18.06.2022 was pleased to allow the Execution Petition and the petitioner was directed to execute sale deed in favour of the respondent within a period of 15 days, failing which, the Court Commissioner would be appointed, who would see to it that the sale deed would be executed in favour of the respondent.
2.4 Being aggrieved by the impugned orders passed in the Execution Petition No.74 of 2018 dated 18.06.2022 and in the Special Civil Suit No.26 of 2015 dated 09.05.2018, the petitioner approached this Court by filing the present petition.
3. Heard Mr. Dhaval Shah, the learned advocate appearing for the petitioner and Mr. H.J. Karathiya, the learned advocate appearing for the respondent.
4. Mr. Dhaval Shah, the learned advocate appearing for the petitioner, submitted that the order passed by the Court below allowing the Special Civil Suit No.26 of 2015 by an order dated 09.05.2018 is an ex-parte order and the Court below was Page 4 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined misguided and misleaded by the respondent herein to obtain a favourable order. Mr. Shah, the learned advocate, submitted that it is required to be appreciated that fraud has been committed with the petitioner herein and the documents i.e. agreement to sale, which was executed by petitioner towards security against the amount borrowed by him, has been misused by the respondent and created a false and frivolous story by suppressing material facts to the Court below and by not disclosing true and correct facts. Mr. Shah, the learned advocate, submitted that the petitioner herein could not remain present in the proceedings and undue advantage of the same has been taken by the respondent. Mr. Shah, the learned advocate, also submitted that the petitioner herein has made written complaint before the police authorities for registration of the offence committed by the respondent herein, which was not been exceeded to by the police authorities. Mr. Shah, the learned advocate, submitted that the notice which was issued to the petitioner herein was by way of affixing and the respondent issued a public notice on 01.06.2015 in the news paper 'Jay Hind'. Mr. Shah, the learned advocate, further submitted that the notice was issued at the suit property by affixing and no efforts were made to serve the petitioner at the correct address and for the said reason, the impugned order is required to be quashed and set aside.
5. Mr. H.J. Karathiya, the learned advocate appearing for the respondent, placed reliance on the affidavit in reply filed by the respondent herein and submitted that the present petition is filed suppressing certain material facts, which are required Page 5 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined to be considered for the adjudication of the dispute-in-
question. Mr. Karathiya, the learned advocate, submitted that the order passed by the Executing Court is just and proper and the same is not required to be interfered with. Mr. Karathiya, the learned advocate, also submitted that the notice issued by the Executing Court was accepted by the mother of the petitioner on 21.01.2019 on the same address which was provided by the petitioner in the Suit as well as in the executing proceedings. The said notice issued by the Executing Court along with endorsement is duly produced at Annexure - R9. On service of notice, the petitioner immediately appeared through an advocate in the Executing proceedings on 04.02.2019. The Vakalatnama of the same is duly produced at Annexure- R10. Mr. Karathiya, the learned advocate, further submitted that an application for adjournment for the purpose of filing appeal as well as objections in the Execution proceedings preferred on 05.02.2019, is duly produced at Annexure - R11. Mr. Karathiya, the learned advocate submitted that the petitioner did not file any objections in the proceedings for a considerable period of time or even any appeal challenging the judgment and decree passed by the trial Court. Thereafter, an appearance came to be filed in the proceedings on 21.09.2019. In the meantime, the Executing Court was pleased to close the right of the petitioner to file objections and therefore, the petitioner herein moved an application below Exh.14 for the purpose of opening his right to file objections, which was allowed by the Executing Court and the same is duly produced at Annexure R13. Mr. Karathiya, the learned advocate, submitted that the petitioner Page 6 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined filed objections in the said proceedings and on considering the overall facts and settled position of law, the Executing Court could not go beyond the decree and by the impugned order dated 18.06.2022, allowed the Execution petition filed by the respondent herein. Mr. Karathiya, the learned advocate, placing reliance on the aforesaid submissions submitted that no interference is required to be called for in the order dated 18.06.2022 passed in Executing proceedings. Mr. Karathiya, the learned advocate, also submitted that the order passed by the trial Court dated 09.05.2018 can be challenged by availing alternative remedy in the form of appeal.
6. Mr. Shah, the learned advocate appearing for the petitioner, during the course of hearing, submitted that the order dated 09.05.2018 passed by the trial Court allowing the Suit is a subject matter of challenge by filing an appeal and the petitioner has challenged the said order by filing an appeal before the District Court, which is pending adjudication.
Analysis:-
7. Having heard the learned advocate appearing for the respective parties, it appears that the petitioner has challenged the order passed by the trial Court by availing alternative remedy of an appeal which is pending adjudication before the appellate Court and therefore, the said order is not required to be interfered with.
7.1 This Court at this stage is inclined to refer to the order passed by the Executing Court in Execution Petition No.74 of Page 7 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined 2018, which is duly produced at Annexure - E, Page 88 of the petition, wherein the Court below considering the submissions advanced by the learned advocates appearing for the respective parties held as under:
"Discussion regarding the position of law as to what is the execution of decree and the power of the executing court :-
Section 47 of Cpc is reads as under :-
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.
Hence, on the basis of the above provisions of law this court has no jurisdiction to decide anything beyond the provisions of law.
General discussion as to the Execution Proceedings :-
Execution is the last stage of any civil litigation. There are three stages in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence where the civil litigation has been instituted with the presentment of the plaint. The decree means operation or conclusiveness of judgment. Implementation of a decree will be done only when parties have filed an application in that regard.
Page 8 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined A decree or order will be executed by the court as facilitative and not an obligation. If a party is not approaching the court, then the court has no obligation to implement it suo motu. A decree will be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by another court which is having competency in that regard.
Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment.
Term Execution Means :-
The term execution has not been defined in the code. The expression execution means enforcement or implementation or giving an effect to the order or judgment passed by the court of justice. Simply execution means the process for enforcing or giving effect to the judgment of the court.
Execution is the enforcement of decrees and orders by the process of the court, so as to enable the decree-holder to realize the fruits of the decree. The execution is complete when the judgmentcreditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order.
Honorable Supreme Court in Ghanshyam Das v. Anant Kumar Sinha dealing with provision of the code relating to execution of decree and orders, stated:
So far as the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different situations providing effective remedies not only to judgment- debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party inadequate measures and appropriate time, the answer is a regular suit in the civil court.
The remedy under the Civil Procedure Code is of superior judicial quality then what is generally available under other statutes and the judge, being entrusted exclusively with administration of justice, is expected to do better. The Law Commission in its 14th (1958), 27th (1964) & 44th (1973) reports also considered the difficulties realised by the decree-holders after obtaining decree from a competent court of law. It also went into the reasons for unsatisfactory state of affairs and made several recommendations and suggestions.
Provisions regarding the Courts Which May Execute Decrees:-
Section 38 of the Code says that a decree may be Page 9 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined executed either by the court which passed it or by the court to which it is sent for execution. Section 37 defines the phrase courts which passed a decree while Sections 39 to 45 provide for the transfer for the execution of a decree by the court which passed the decree to another court, lay down conditions for such transfer and also deal with the powers of executing court. Therefore, all this needs to be read together.
A decree may be execute by the court which passed it or by the court to which it is sent for execution. A court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it. Where the court of first instance has ceased to exist or ceased to have jurisdiction to execute the decree, the decree can be executed by court which at the time of making the execution application would have jurisdiction in the matter.
Who may apply for the execution? Rule 10 The following persons may file an application for execution:
i. Decree-holder.
ii. Legal representative of the decree-holder, if the decree-
holder is dead.
Iii. Representative of the decree-holder. iv. Any person claiming under the decree-holder. v. Transferee of the decree-holder, if the following conditions are satisfied:
a. The decree must have been transferred by an assignment in writing or by operation of law;
b. The application for execution must have been made to the court which passed the decree.
c. Notice and opportunity of hearing must have been given to the transferor and the judgement-debtor in case of assignment by the transfer.
The object of issuing a notice is to determine once and for all and in the presence of the parties concerned the validity or otherwise of the assignment or transfer.
vi. One or more of the joint decree-holders, provided the following conditions are fulfilled:
a. The decree should not have imposed any condition to the contrary;
b. The application must have been made for the execution of the whole decree and;
c. The application must have been for the benefit of all the joint decree-holders.
Against whom the execution can be made?
Execution may be taken out against the following persons:
i. Judgement-debtor.
ii. Legal representative of the judgement-debtor, if the judgement-debtor is dead.Page 10 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023
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iv. Surety of the judgement-debtor.
An application for the execution of the decree may be filed in the court which passed the decree or in the court to which the decree has been transferred for the execution.
Limitation: The limitation period for the execution of a decree is 12 years from the date of the decree. The period of limitation for the execution of a decree for mandatory injunction is 3 years from the date of the decree.
Hence, looking to the above provisions, it is clear that the present execution petition has been sufficiently fulfilled all the above ingredients.
Stay of Execution Provisions for stay of execution of a decree are made in Rule 26 of Order XI. This rule lays down that the executing court shall, on sufficient cause being shown and on the judgement- debtor furnishing security or fulfilling such conditions, as may be imposed on him, stay execution of decree for a reasonable time to enable the judgmentdebtor to apply to the court which has passed the decree or to the appellate court for an order to stay execution.
The power to stay is not similar between the court who passed it and to the court the decree is transferred for execution. The transferee court can only stay the execution of decree for a reasonable time to enable the judgement-debtor to apply to the transferor court or to the appellate court to grant stay against the execution but the transferor court can grant the absolute stay against the execution. A transferee court cannot invoke inherent powers to grant stay.
There is distinction between staying of an order and quashing of an order. Quashing of an order means that no such order had ever been passed and there is restoration of position as it stood prior to the passing of the order. Stay of order, however, means that the order is very much there, but its operation is stayed.
Hence, case on hand, no such sufficient cause is shown by judgment debtor so that present execution proceedings can be stayed.
It is submitted that the following observations of Misra, J, in the case of Judhiatir v. Surendra, lay down correct law on the point:
The fundamental consideration is that the decree has been obtained by a party and he should not be deprived of the Page 11 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined fruits of that decade except for good reasons. Until that decree is set aside, it stands good and it should not be lightly dealt. The decree must be allowed to be executed, and unless an extraordinary is made out, no stay should be granted. Even if stay is granted, it must be on suitable terms that the earlier decree is not stifled.
Herein case on hand, it does not appear that the objection Page No.39 Exe. Peti. No.74/2018 raised would entitled the judgment debtor for stay of the proceedings.
Hence, from the above discussion, it clearly appears that execution is the enforcement of decrees and orders by the process of court, so as to enable the decree-holder to realize the fruits of the decree. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and order, take care of the different type of situation and provide effective remedies not only to the decree-holder and judgment-debtors but also to the objectors and third parties.
A decree can be executed by various modes which include delivery of possession, arrest, and detention of the judgment- debtor, attachment of the property, by sale, by appointment of receiver, partition, cross-decrees, and cross-claims, payment of money etc. On exceptional situation, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file suit in civil court but herein case on hand, the relief can be granted in favor of decree holder.
Hence, on the basis of the above discussion it is clear that judgment debtor had failed to prove the objections raised so as to stay the matter or dismiss the same. The objection raised regarding the power of attorney is also taken into consideration and the objection raised regarding the original power of attorney is also brought on record.
Hence, it appears that the decree holder has performed his part of contract / agreement and inspite of notice the judgment debtor failed to perform his part i.e., to execute the sale deed in favor of the decree holder. Under the circumstance, as per the settled principle of law the executing court cannot go behind the decree.
Under the circumstance, the objection raised by the judgment debtor does not sustain at this stage and hence, the following order is passed."Page 12 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023
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8. The objections raised by the petitioner reads thus:
"1) The execution petition is false and baseless because in the special civil suit no.26/2015, the decree holder of the present case had falsely made the submissions and by playing fraud without merits had got passed the decree in her favor on dtd 09/05/2018. Only merely writing that fraud is committed would not suffice, Page No.25 Exe. Peti. No.74/2018 it has to be proved before the concerned court or the Honorable Appellate Authority but herein case on hand that is not done by the judgment debtor.
2) The another submission regarding the fraud is that in said special civil suit no.26/15 the address mentioned was only "Ahmedabad" and where the said process was served is a big question in such a big city like Ahmedabad and submitted that on the basis of that it is very clear that in special civil suit no.26/15 the process is not served and hence misguided the court and got the decree."
8.1 The Court below considered the objections raised by the petitioner, and held as under:
"Now, on the basis of this objection it is necessary to refer the documents produced by the judgment debtor. In that the document produced along with the objections are as under :-
1) Photo copy of Application for Stop payment:- The present document is produced vide 17/1. It is of dtd 09/06/2014 regarding the stop payment of cheque no 036410 of Central Bank of India and the judgment is of dtd 09/05/18. Hence, on the basis of this document the fraud is committed for obtaining the decree cannot be decided by this court. Not only that but, fraud is committed is not proved by this document.
2) Photo copy of Death Certificate of Aakansha:-
3) Photo copy of Death Certificate of Deepaben:-
Looking to these documents, they are death certificates but the pleadings regarding the death of both these persons does not match with and does not appear to be a swolloable explanation. This court is not going into the mental state of mind of the accused and due to that, but that cannot be the reason of fraud committed. Not only that but it does not appear that on the basis of this document the fraud is committed for obtaining the decree cannot be decided by this court. Not only that but, fraud is committed is not proved by these documents.
4) Photo copy of FIR:-
Looking to this document, it is a copy of FIR that has nothing to do with the fraud committed or not. Not only that but this court Page 13 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined has no jurisdiction to enter into such facts that what happened or not during the trial and what was the mental state of mind of the judgment debtor. From this document it does not appear that on the basis of this document the fraud is committed for obtaining the decree cannot be decided by this court. Not only that but, fraud is committed is not proved by this document.
5) Photo copy of affidavit cum declaration:-
6) Certified copy of Undertaking:-
7) Certified copy of Application for transfer of share:-
8) Certified copy of Application for membership:-
Looking to these documents, these documents and other were not acted upon. But the said contentions cannot be decided by this court and it has to be challenged and should be placed before the proper court having jurisdiction to decide regarding the same. Not only that but it does not appear that on the basis of these documents the fraud is committed for obtaining the decree can be decided by this court. Not only that but, fraud is committed is not proved by this document.
9) Certified copy of Rojnama in Spcs no.26/2015 :-
Looking to this document, it is a copy of rojnama of Spcs 26/2015 in which advocate of judgment debtor had highlighted the rojnama of 14/03/2016. Now looking to the said rojnama it is regarding the service of process but after this rojnama the matter continued till dtd 09/05/2018 and after the above rojnama dtd 14/03/16 till the final decision the matter continued for a long time. The said objections raised regarding this fraud does not appear to be a fraud but if at any point of time the judgment debtor felt that it was a fraud he could have challenged the same and hence on the basis of this document too, it does not appear that on the basis of this document the fraud is committed for obtaining the decree cannot be decided by this court. Not only that but, fraud is committed is not proved by this document.
Hence, on the basis of the documents produced this court does not agree with the objections raised is a fraud. It can be termed as a procedure and if judgment debtor was aggrieved by the final outcome and the procedure is defective or exparte then in that event it can be challenged before the competent authority to having jurisdiction to decide the objection but this court has no jurisdiction to do the same.
3) It is further submitted that the suit property is not in a condition that a person can stay in it and judgment debtor is staying at Ahmedabad in rented premises and whenever the judgment debtor will change the address will inform the court regarding the said submission this court has no jurisdiction to decide.
4) It is further objected that the false representation made by the decree holder in special civil suit 26/2015 that decree holder had Page 14 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined performed his part of contract but yet judgment debtor is not performing his part and regarding the same judgment debtor has submitted that judgment debtor had never sold the said property to the decree holder and never had given any papers to enter the name of the decree holder in the society and all the original papers is in the possession of the judgment debtor and the share certificate has also not been given to the decree holder and regarding that decree holder had given a complaint that the papers are lost and in the newspaper also given a notice and the same had been objected by the judgment debtor yet decree holder by joining hands with the society had transferred the shares in her name and further contended that decree holder may clarify that how the amount was paid by the decree holder to the judgment debtor as discussed and again at the cost of repetition it is clarified that this court has no authority to decide all this objections. Whether fraud is committed or not cannot be decided by this court but here when the submissions are made regarding the fraud then it is very clear that before this court no fraud is sufficiently proved and shown as per the definition narrated above.
5) It is further submitted that the fact is that the judgment debtor had a minor daughter who was having valve disease in the heart and in that judgment debtor has incurred Rs.10,00,000/-(Rupees Ten Lacs Only) for the operation and thenafter again operation expenses were incurred but during the second operation his daughter passed away on dtd 16/12/2011 and after that on dtd 15/07/2012 his wife also attempted suicide and regarding that a FIR was lodged against the judgment debtor in A-Division Police Station u/s. 306 was bearing I Cr. no.119/12 registered and judgment debtor was in jail for the period of dtd 21/07/2012 to 08/01/2012 and further contended that at present judgment debtor is staying with the minor son Urvin and the judgment debtor has borrowed Rs.4,00,000/-(Rupees Four Lacs Only) from the husband of the decree holder and the same has been repaid but yet decree is taking undue advantage of the poor situation of the judgment debtor also submitted that by force husband of the decree holder had taken the signatures but had committed a mistake and thereby had never got the same registered as per Section 17 and also the application shall be stayed and also contended that judgment debtor had never handed over the suit property to the decree holder and still two cheques of judgment debtor is lying with the decree holder and in the suit decree holder has stated that in Shree Odhavram Bhanushali (Gandhidham) Owner's Association the name of the decree holder got it transferred but that is in a false manner got it transferred because on the basis of which document the said transfer is done is also not clarified and for that if decree holder wants to proceed further she can do it but the above submissions cannot be the base of staying the present execution petition because the above submission does not fall under the purview of fraud, if at all judgment debtor feels all the above acts to be fraud then the submissions should have been made but judgment debtor failed to do so.Page 15 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023
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6) It is further submitted that the decree of special civil suit no.26/15 is by fraud, misrepresentation, breach of trust and hence shall be stayed but on the basis of the above discussion it does not appear that any fraud is committed and if committed then that submission should have been placed before the competent authority as this court is executing court and as discussed above cannot be go beyond the decree yet keeping in mind the authority produced by the judgment debtor of Honorable Apex Court as referred above keeping in mind the principle that if decree is obtained by fraud and nullity then it not nonest in eyes of law. Then also considering that principle in mind and looking to the objections raised to that particular extent on the basis of the available record before this court it does not appear that the objections raised by the judgment debtor falls under the purview of fraud."
9. Considering the submissions advanced by the petitioner, the Court below, as referred above considered the objections raised by the petitioner herein and after considering the various provisions of law, proceeded to pass final order.
FINAL ORDER "1) It is hereby ordered that in the present execution petition it is hereby directed to judgment debtor or court commissioner (as the case may be) to prepare a draft of sale deed as per the terms of decree and submit the same to this court within 15 days from today as provided in Order 21 Rule 34(2) of the Cpc.
2) It is hereby further ordered that in event of failure to comply to prepare draft by judgment debtor, issue notice to the judgment debtor alongwith the copy of draft deed prepared by court commissioner calling upon him to submit his objections (only to the extent of contents of the draft deed), if any within 15 days from the date of receipt of the notice, as provided in Order 21 Rule 34(2) of the Cpc.
3) It is hereby further ordered that if the judgment debtor do not comply with the above order as per para 1 and 2 of the final order then Registrar of Principal Senior Civil Court, GandhidhamKachchh, is hereby appointed as court commissioner for execution of sale deed on behalf of the judgment debtor on presentation of necessary stamp papers as provided in Order 21 Rule 34(4) of the Cpc by decree holder within 15 days of the failure of judgment debtor.
4) The decree holder at present shall tentatively deposit Rs.10,000/- (Rupees Ten Thousand Only) towards remuneration of Registrar of Principal Senior Civil Court, Gandhidham-Kachchh Page 16 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined within 15 days of the failure of judgment debtor to comply the order as per para no.2 of the final order.
5) It is hereby further directed that after depositing all the charges i.e., stamp fees, etc.. and remuneration amount by (decree holder), under Order 21 Rule 34(6) to judgment debtor / Registrar of Principal Senior Civil Court, Gandhidham-Kachchh Court Commissioner, to get the sale deed executed and registered in accordance with the law as per the decree within 30 days from the date of the payment of remuneration and compliance all above orders of para no.1 to 4 of the final order and after the compliance of the all other required legal formalities by decree holder and shall submit the copy of the same before this court along with its report of work done as court commissioner."
10. As aforesaid, the relevant provisions have been referred to by the Court below and having considered the same, this Court is of the view that the Court below could not have been traveled beyond the decree, which was passed by the trial Court. The Executing Court while considering the objections filed by the petitioner, after discussion at length, held that the 'fraud' as alleged by the petitioner does not appear to be a fraud but if at any point of time the judgment debtor felt that it was a fraud, he could have challenged the same and hence, on the basis of the document too, it does not appear that the fraud is committed for obtaining the decree. It is further held that if the petitioner i.e. judgment debtor is aggrieved by the procedure, the same be challenged before appellate Court in accordance with law. It is further held that the judgment debtor never sold the property to the decree holder and had never given any papers to enter the name of the decree holder in the society and all the original papers are in the possession of the judgment debtor. The Court below while deciding the Execution Petition also considered the objections raised by the petitioner herein. The main objection raised by the petitioner Page 17 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined herein was that the document-in-question i.e. the agreement between the parties is a fraudulent document which, in view of this Court can be subject matter of an appeal. The petitioner has already availed an alternative remedy of an appeal by challenging the said order dated 09.05.2018 on merits that can be decided by the competent Court on merits.
11. At this stage, it is apposite to refer to the decision of the Hon'ble Supreme Court in the case of M/s. Garment Craft Vs. Prakash Chand Goel, reported in AIR 2022 SC 422, wherein it is observed and held as under:
"15. Shailendra Garg was released on bail on 6th May 2017 and within 10 days of his release on 16th May 2017, he filed an application under Order IX Rule 13 of the Code for setting aside of the ex-parte decree. In particular, it was pleaded that the High Court had failed to issue production warrant for appearance of Shailendra Garg before closing the defence evidence, despite the fact that earlier production warrant had been issued and Constable Jitendra Kumar had appeared seeking clarifications. It was highlighted that Shailendra Garg being in detention, could not follow up the proceedings in the suit and it was very difficult for him to communicate with and give instructions to his counsel.
16. Upon consideration of the facts, vide detailed reasoned order dated 24th July 2018, the application under Order IX Rule 13 of the Code was allowed, setting aside the ex-parte decree, restoring it to its original number and listing it for defence evidence. Paragraphs 8, 11 and 12 of the order read thus:
"8. From the certified copy of the proceedings of the suit filed by the applicant/defendant, it is evident that matter was transferred from the Hon'ble High Court to the District Court vide order dated 17.12.2015 and the same was assigned to the Court of my Ld. Predecessor on 18.02.2016. It is recorded in the order dated 14.03.2016 that defendant had been sent to jail on 06.10.2015 and thus found sufficient cause for non- filing of list of witnesses by defendant and therefore gave further time to file list of witnesses subject to costs of Rs.5,000/- and fixed the matter for 22.04.2016. On 22.04.2016, none had appeared on behalf of plaintiff whereas associate counsel for defendant had appeared who made further submissions that defendant is in judicial custody and matter was adjourned for 3.00 PM and at 3.00 Page 18 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined PM the associate counsel produced the certificate issued by jail dated 24.01.2016 as per which defendant was in JC in connection with FIR bearing no.422/2014 in Jaipur Jail from 06.10.2015 till 24.02.2016. Therefore, the Court was of the opinion that the defendant's counsel should have moved an application for issuance of production warrants and since same was not moved the case was adjourned for DE for 31.05.2016 subject to further cost of M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 5 of 9 Rs.5,000/-. On 11.05.2016, file was again taken up on an application filed by the defendant for issuance of production warrants and accordingly production warrants were issued in the name of SSP concerned for 31.05.2016. On 31.05.2016, the counsel for the plaintiff as well as counsel for the defendant appeared and one Ct. Jitender appeared from the Jaipur Jail who filed some written clarifications sought from (though it should be by) concerned Jail Superintendent whether defendant is on bail in the said matter or not and the Hon'ble court found the said clarification baseless and directed against Jail Superintendent to produce the defendant and the matter was adjourned for 08.06.2016. On 08.06.2016, in view of the circular of the Hon'ble High Court, matter was sent back to the Ld. District Judge to transfer the case to the Hon'ble High Court. Thereafter, on 10.08.2016, the matter was again sent to the Ld. ADJ and then matter was listed for 22.08.2016. On 22.08.2016, the Court fixed the case for DE for 09.09.16. On 09.09.2016, proxy counsel for the defendant has appeared and filed an application for issuance of production warrants. The Court observed that it is incline to issue production warrants provided proper affidavit filed either by plaintiff or his counsel that defendant is actually happened to be in jail till date along with particular of the case and that he has not been released from jail and court adjourned the matter for 04.11.2016. On 04.11.2016, only plaintiff counsel has appeared but M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 6 of 9 none appeared on behalf of defendant, hence after noting down the previous proceedings, DE was closed and case was listed for final arguments for 07.11.2016. On 07.11.2016, the case was fixed for clarifications for 08.11.2016 and on 08.11.2016 judgment was passed.
XX XX XX
11. Since technically on 04.11.2016 defendant was not proceeded ex parte hence in technical sense the judgment cannot be said as an ex parte judgment but actually this is an ex parte judgment as for all practical purpose defendant has been proceeded ex parte on 04.11.2016 when his DE was closed in his absence. Hence I consider the judgment dated 08.11.2016 as ex parte judgment. Therefore, in my view application U/o 9 Rule 13 CPC filed by the defendant is Page 19 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined maintainable.
12. Now coming to the merits. From the aforesaid order sheets, it is evident that the fact of defendant being in JC was intimated by the defendant's counsel on 22.04.2016 and in fact thereafter Ld. Predecessor has issued the production warrants on 11.05.2016 for production of the defendant from the jail. But he was not produced by the Jail Superintendent from Jaipur jail and court has again directed to produce him for 08.06.2016. But in between matter was transferred to the Hon'ble High Court and then again transferred to the District Court for 09.09.2016. On 09.09.2016, my Ld. Predecessor was not sure that accused is in JC therefore she has asked for the affidavit of the counsel for the defendant regarding the defendant being still in JC on 09.09.2016 and apparently same was not furnished when the case was listed on 04.11.2016. In fact some proxy counsel appeared on behalf of applicant/ defendant on that day to apprise the status of defendant whether he was in JC or not, due to which court closed the DE. As M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 8 of 9 averred by the defendant, he was in JC and only released from jail on 06.05.2017. This fact has not been contradicted by the applicant/ plaintiff. Therefore in my view there was no fault for his non-appearance for leading DE or not filing the list of witnesses as same was beyond his control. The record shows that some proxy counsel might be appearing on his behalf but when a person remains in jail and that too in Jaipur jail it become very difficult to give instructions to his counsel on each and every date. Even the counsel also become lethargic as he might not be getting his fees therefore even proxy counsel was not appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice."
12. This Court is not inclined to interfere in the order passed by the Executing Court dated 18.06.2022 in the Execution Petition No.74 of 2018 for the reasons as mentioned above and the position of law as referred above. Admittedly, the petitioner appeared before the Executing Court and has contested the same on its own merits. The Court below considered the objections raised by the petitioner herein and passed the order impugned as referred above.
13. In view of above, the present petition is hereby dismissed Page 20 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023 NEUTRAL CITATION C/SCA/13491/2022 ORDER DATED: 09/01/2023 undefined reserving the liberty to take all the contentions as available under the law before the appellate Court where the appeal as stated by the petitioner is pending adjudication. Interim relief, if any, stands vacated. Notice discharged.
(VAIBHAVI D. NANAVATI,J) NEHA Page 21 of 21 Downloaded on : Sun Sep 17 20:38:29 IST 2023