Gujarat High Court
Adani Power Limited vs Bharvad Deviben Gungabhai (Since ... on 4 September, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/2225/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2225 of 2016
==========================================================
ADANI POWER LIMITED....Petitioner(s)
Versus
BHARVAD DEVIBEN GUNGABHAI (SINCE DECEASED) &
3....Respondent(s)
==========================================================
Appearance:
MR MANAV A MEHTA, ADVOCATE for the Petitioner(s) No. 1
MS.MEGHA CHITTALIYA, AGP for the Respondent(s) No. 2 , 4
KOMAL S DAVE, ADVOCATE for the Respondent(s) No. 1.1 - 1.4
MR SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 1.1 - 1.4
NOTICE SERVED for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 04/09/2017
ORAL ORDER
1. The petitioner has come with the present petition under Article 227 of the Constitution of India with the following prayers made in the paragraph No.4:
" (A) The Hon'ble Court be pleased to quash and set aside the order dated 5th February, 2016 of issuance of notice passed below application Exh.12 made on 5th February, 2016 in Civil Misc. Application No.16 of 2015 pending before the Court of learned Principal Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Sep 09 23:17:12 IST 2017 C/SCA/2225/2016 ORDER Senior Civil Judge, Patan and be further pleased to grant stay of the execution of the decree passed in Regular Civil Suit No.15 of 2011 till the hearing and final disposal of Civil Misc. Application No.16 of 2015. (B) Pending admission, hearing and final disposal of the main petition, the Hon'ble Court be pleased to stay the execution of the ex-parte judgment and decree dated 5th February, 2014 passed in Regular Civil Suit No.15 of 2011.
(C) The Hon'ble Court be pleased to grant ex-parte ad-interim relief in terms of para(B) above.
(D) Such order and further reliefs as deemed fit and proper be granted. (E) Costs of the petition be awarded."
2. It appears that the petitioner has filed an application under Order 9 Rule 13 of Civil Procedure Code, 1908 (the Code) somewhere in the year 2015 seeking to set aside decree alleged to have been passed ex-parte in the Regular Civil Suit No.15 of 2011.
3. In above such application, the petitioner preferred the application to stay ex-parte decree Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Sep 09 23:17:12 IST 2017 C/SCA/2225/2016 ORDER or the execution thereof by the executing Court. It appears that no order for staying the decree or staying execution proceedings is made. However, since the petitioner apprehended that the respondent Nos.1/1 to 1/4 i.e the decree holders might take law in their hands and may forcibly take away the possession of the suit property from it, the petition is filed with above such prayers.
4. Learned advocate Mr.Umesh Shukla appears with learned advocate Mr.Mehta for the petitioner submitted that if there is no stay granted against the decree or no restraint order is made against the respondent Nos.1/1 to 1/4 to prevent them from forcibly taking away the possession of the suit property, the petitioner will suffer at the hands of the decree holders even before its application under Order 9 Rule 13 of Civil Procedure Code, 1908 (the Code) is finally decided by the Court below. Learned advocate Mr.Shukla therefore requests to continue interim- relief staying the execution of the decree dated 5th February, 2014 passed in the above referred suit, till the application preferred by the petitioner under Order 9 Rule 13 of Civil Procedure Code, 1908 (the Code) is finally decided by the Court below. Learned advocate Mr.Shiddhrath Dave for the decree holders submitted that the execution proceedings are pending as on today and till any order is made in Page 3 of 5 HC-NIC Page 3 of 5 Created On Sat Sep 09 23:17:12 IST 2017 C/SCA/2225/2016 ORDER the execution proceedings, there is no question of forcibly taking away the possession of the suit property by the decree holders from the petitioner.
5. The Court finds that when the petitioner filed the application in the year 2015 under Order 9 Rule 13 of Civil Procedure Code, 1908 (the Code) seeking to set aside the ex-parte decree, if the Court was not to grant any interim stay against execution of the decree, the application could have been decided at the earliest. Such application preferred by the petitioner has remained pending and as submitted by the learned advocate Mr.Shukla for the petitioner there is not stay granted against the decree made in the above referred suit as a result at any time the possession of the suit property from the petitioner could be taken forcibly by the respondent Nos.1/1 to 1/4. Having regard to the fact that the application filed under order 9 Rule 13 of Civil Procedure Code, 1908 (the Code) has been pending without any interim relief granted therein, the Court is of the view that the interim order made in the present matter staying the execution of the decree, should continue till the final decision of the application and in the interest of both the parties, the application could be ordered to be decided at the earliest.
Page 4 of 5HC-NIC Page 4 of 5 Created On Sat Sep 09 23:17:12 IST 2017 C/SCA/2225/2016 ORDER
6. In view of the above, the present petition is disposed of with the direction that the Court below shall decide Misc. Civil Application No.16 of 2015 preferred by the petitioner seeking to set aside the decree passed in Regular Civil Suit NO.15 of 2011 within a period of four weeks from the date of receipt of this order and till the final decision is rendered by the Court below, the interim-relief granted in the present petition whereby, the decree passed in the above referred suit is stayed, shall continue. Direct service is permitted.
(C.L.SONI, J.) PALAK Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Sep 09 23:17:12 IST 2017