1, By preferring this petition under Article 227 of the Constitution of India challenged the order passed by the learned Principal Senior Civil Judge, Navsari, in Execution Petition No. 33 of 1984 dated 21st November 2011 issuing possession warrant against the petitioner in respect of suit property as also with further request to quash and set aside the order dated 19th July 2011 passed by the Principal Senior Civil Judge setting aside abatement of Execution petition No. 33/84 and also the ancillary reliefs.
2. On Notice being issued to the respondent on 27th January 2012, direct service was permitted. The affidavit produced on record is indicative that respondent has refused to accept the service.
3. Heard learned advocate Mr. Zubin Bharda for the petitioners who are heirs of the deceased judgment debtor. He emphasised the fact that Execution petition was abated as father of the present petitioners had passed away. On subsequent date without issuing notice to the present petitioners, the Court has set aside the abatement in complete disregard to the settled legal position. He further alleged that no application for setting aside the abatement has been moved and still the Court passed such an order and therefore, he has challenged the same by way of the present petition. Reliance is placed on the judgment of this Court in the case of Thakor Bhikhaji Vagaji Vs. Pradyumanbhai Raghunathbhai Barot and Ors reported in 2011(3) GLR 2464
4. As far as the challenge made to the setting aside of the abatement without issuance of notice to the present petitioner is concerned, the said contention being more in nature of the technical dispute the same is not finding favour with this Court and without much delving upon the said aspect, the request of interference is being denied.
6. However, for a limited purpose the issue would assume relevance as in an execution petition against the parents of the present petitioners, the petitioners have been impleaded as the judgment debtors being the heirs of the original defendant, a request is made to the Court in wake of the aforementioned circumstances to avail an opportunity of hearing during the issuance of the warrant in respect of suit premises. However, the Court did not deem it fit to avail such an opportunity and straight away issued the possession warrant. Therefore, this challenge under Article 227 of the Constitution of India. Order 21 of the Code of Civil Procedure authorises the Court to issue the possession warrant without even issuing the notice to the other side and without further hearing judgment debtor if the execution petition is preferred within two years of the passing of the decree. In the instant case the judgment debtor passed away on 13th May 1988. The mother of the present petitioner is still alive. However, the petitioners being heir of the judgment debtor and having been impleaded setting aside the abatement without issuing the notice, it would be necessary that the executing Court to give opportunity of hearing.
7. It is also necessary to make a mention here that any obstructionist claiming through the judgment debtor, the Court is within its right not to entertain any plea of such obstruction. However it will be independent emphasis of the right which is required to be established here. In the instant case request made for affording an opportunity to the petitioner being the heirs having been brought on record in the aforementioned circumstances requires to be acceded to. The order impugned issuing possession warrant is hereby quashed and set aside therefore the trial court shall afford an opportunity of hearing to the petitioners and necessary order shall be passed in accordance with law thereafter. It is also being clarified that petitioners shall not take any adjournment for the said purpose nor shall attempt to delay the proceedings of Execution petition.
6.1 It is inevitable to make a mention at this stage that this Court has expressed no opinion on merit of the contentions raised in the Execution Petition. The Executing Court without being influenced by the outcome of this petition shall independently decide in respect of possession warrant and other related issues.
7. With the above observation, this petition stands disposed of accordingly.
(Ms.
Sonia Gokani,J.) mary// Top