IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 359 of 2004 With CIVIL REVISION APPLICATION No. 383 of 2003 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DURGAPRASAD NATHURAM AGRAWAL (DECD.THRO.HIS HEIR) -
Applicant(s) Versus HARICHARANLAL MAKHKHANLAL AGRAWAL - Opponent(s) =========================================================
Appearance :
MR VIBHUTI NANAVATI for Applicant(s) : 1, MR MEHUL S SHAH for Opponent(s) : 1, MR SURESH M SHAH for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/08/2012
ORAL JUDGMENT
1.00. As common question of facts and law arise in both these Civil Revision Applications and are between the same parties with respect to very suit property in question, both these Civil Revision Applications are heard, decided and disposed of by this Common judgement and order.
2.00. Civil Revision Application No. 359 of 2004 has been preferred by the petitioner - original plaintiff – judgement creditor under section 115 of the Code of Civil Procedure to quash and set aside the impugned order passed by the learned executing court below Ex.1 in Regular Darkhast Application No.326 of 2001 dtd.30/9/2003, by which the learned executing court has dismissed the said execution petition observing that the decree is unexecutable in view of the fact that Municipal Census Number and Boundaries of the suit property are not mentioned in the judgement and decree sought to be executed.
2.01. Civil Revision Application No.383 of 2003 has been preferred by the very petitioner – original plaintiff – judgement creditor to quash and set aside the impugned order passed by the learned executing court - learned Civil Judge (J.D.), Vadodara below Ex.58 in Regular Darkhast Application No.326 of 2001 dtd.30/9/2003 by which the learned executing court has dismissed the said application preferred by the petitioner herein to issue possession warrant with respect to the properties described in the said application.
2.02. The petitioner – original plaintiff instituted Regular Civil Suit No.1094 of 1979 against the respondents – original defendants in the court of learned Civil Judge (S.D.), Vadodara for recovery of the possession of the suit premises situated at Firoz Shah Contractor’s Chawl in the lane of Pandya Hotel, Ground Floor, Ghhani Road, Vadodara. It is not in dispute that the learned trial court decreed the suit in favour of the petitioner – original plaintiff and the same has been confirmed upto the Hon'ble Supreme Court. That thereafter, after dismissal of the Special Leave Petition (SLP) by the Hon'ble Supreme Court, the petitioner filed execution petition being Regular Darkhast Applicatin No.326 of 2001 praying for delivery of actual and vacant possession of the suit property by executing Jangam Warrant. Initially the learned executing court issued notice upon the respondent – original defendant – judgement debtor and the respondent filed his objections under section 47 of the Code of Civil Procedure in the said execution proceedings. The said objections were heard by the learned executing court and the learned executing court rejected the all the objections submitted by the respondent – judgement debtor by passing order below Ex.27. That thereafter in pursuance of the order passed by the learned executing court directing to issue possession warrant, Bailiff was ordered to execute the Kabja Warrant - Possession Warrant and thereafter learned executing court ordered that the decree be executed under Order 21 Rule 35 of the Code of Civil Procedure. However, the Bailiff did not execute the warrant and returned the warrant with an endorsement that boundaries have not been stated in the warrant and therefore, warrant is returned back. That thereafter the petitioner – judgement creditor gave application Ex.58 stating the Municipal Census Number and boundaries of the suit properties and further prayed for execution of the possession warrant, which came to be rejected by the learned executing court by order dtd.30/9/2003 on the ground that the described property is not mentioned in the suit and the learned executing court cannot go beyond the averments made in the plaint and the decree. That the order passed by the learned executing court below Ex.58 dtd.30/9/2003 is the subject matter of Civil Revision Application No. 383 of 2003.
2.03. That thereafter learned executing court has passed order below Ex.1 in Execution Petition No.326 of 2001 rejecting the same on the ground that the decree is unexecutable as the Municipal Census Number and Boundaries of the properties have not been mentioned in the suit.
2.04. Being aggrieved by and dissatisfied with the aforesaid two orders, petitioner – original plaintiff - judgement creditor has preferred present Civil Revision Applications under section 115 of the Code of Civil Procedure
3.00. Today both these Civil Revision Applications are taken up for final hearing and after the matters were heard for sometime, there is broad consensus between the learned advocates appearing on behalf of the respective parties that the impugned orders passed by the learned executing court below Ex.58 as well as order passed below Ex.1 in Execution Petition No.326 of 2001 be quashed and set aside and the matter be remanded to the learned executing court to decide the execution petition afresh in accordance with law and on merits and even permitting the parties to lead evidence, if required, with respect to the actual suit properties and description of the suit property. The learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while quashing and setting aside the impugned orders and remanding the matter to the learned executing court.
3.01. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties recorded hereinabove and even considering the fact that the judgement and decree passed by the learned trial court passing decree for possession has been confirmed by the Hon'ble Supreme Court and even the respondent - judgement debtor preferred one Regular Civil Suit No.272 of 2002 giving description of the suit property and even considering the scope and ambit and powers of the learned executing court under section 47 of the Code of Civil Procedure, even learned executing court can consider the evidence recorded in the suit in which the decree has been passed, to find out the actual description of the suit property, if there is any ambiguity and even the parties can be permitted to lead evidence with respect to the description of the suit property, however, the learned executing court has failed to exercise the powers vested in it. Under the circumstances the impugned orders passed below Ex.58 as well as Ex.1 deserve to be quashed and set aside and the matter is to be remanded to learned executing court to decide and dispose of the said execution petition afresh in accordance with law and on merits and permitting the parties to lead evidence, if required, to find out the description of the suit property.
4.00. In view of the above and for the reasons stated above, both these Civil Revision Applications succeed. The impugned orders passed by the learned executing court below Ex.58 dtd.30/9/2003 as well as order passed by the learned executing court below Ex.1 dtd.30/9/2003, in Regular Darkhast No.326 of 2001, are hereby quashed and set aside and the matters are remanded to the learned executing court to decide and dispose of the said Execution Petition afresh in accordance with law and on merits, after permitting the parties to lead evidence, if required, to find out the description of the suit property and if it is found that if there is any ambiguity with respect to the description of the suit property, the learned executing court can also go into the such question and consider the entire evidence recorded in the Suit in which the decree is passed. The aforesaid exercise shall be completed by the learned executing court within a period of six months from the date of receipt of the present judgement and order. Rule is made absolute to the aforesaid extent in each of the revision applications. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik