Heard learned advocate for the petitioner.
The petitioner has approached this Court with following prayers :
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/certiorari or a writ in the nature of mandamus / certiorari or any other appropriate writ, order or directions directing that the application of the petitioner below Exh.44 pending before learned 6th Additional Senior Civil Judge, Palanpur (at ANNEXURE - Q hereto) be heard and decided on merits as expeditiously as possible, preferably within a period of 15 days;
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/certiorari or a writ in the nature of mandamus / certiorari or any other appropriate writ, order or directions directing that while deciding the application below Exh. 44 of the petitioner (at ANNEXURE - Q hereto), learned trial Court shall consider the order passed by this Hon'ble Court in Special Civil Application No. 17076 of 2011 dated 15.11.2011 (at ANNEXURE - N hereto) and further be pleased to hold and declare that any action taken discarding the said order dated 15.11.2011 (including panchnama and/or possession receipt that may have been prepared) would be nonest, illegal and unenforceable;
(C) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further proceedings of Darkhast Application No. 15 of 1995 pending before learned 6th Additional Senior Civil Judge, Palanpur (at ANNEXURE - E hereto);
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
Learned advocate appearing for the petitioner has contended that original possession warrant issued by the Executing Court did not reflect correctly the identification and marking of land in question, hence the possession warrant itself was subject matter to challenge in Special Civil Application No. 17076 of 2011, in which, this Court thought it fit to dispose of the matter vide order dated 15.11.2011 modifying the possession order dated 08.04.2011 straightway instead of issuing notice to the respondents and putting them rigors of one more litigation. However, the respondents i.e the private parties in whose favour the final order dated 08.04.2011 was enuring was given liberty to approach this court in case of difficulty. This order was made on 15.11.2011 and before it was served, the possession was taken over on 16.11.2011 and the original plaintiff and the applicant in Execution Application proceedings being 15 of 1995 filed purshis for disposing of the Darkhast, which was objected to by the petitioner vide application/objection at Exh. 44, as the modified order was not carried out, which has resulted into petitioner being deprived of his property contrary to the original decree. Learned advocate for the petitioner has invited this court's attention to Exh. 44 application and submitted that in view of this peculiar facts and circumstances of the case, the aforesaid prayers are made.
This Court is of the considered view that the prayers which are made, if granted straightway, would not in any manner prejudice the respondents in this petition. Hence, while disposing this petition at this stage, following direction is issued:
The concerned trial court i.e. learned 6th Additional Senior Civil Judge, Palanpur shall decide application Exh. 44 within 21 days from the date of receipt of this order after giving opportunity to all the concerned on merits. It goes without saying that this order is passed ex-parte, it would be open to the respondents to approach this court for modification and/or revocation of this order with appropriate application.
With this observation, petition is disposed of. No costs. Direct service permitted.
(S.R.BRAHMBHATT, J.) pallav Top