[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellants herein – original defendant Nos.1 and 2 – judgment debtors to quash and set aside the impugned judgment and order dated 03.07.2012 passed by the learned Appellate Court learned 4th Additional District Judge, Bharuch in Regular Civil Appeal No.79 of 2004 by which the learned Appellate Court has allowed the said Appeal preferred by respondent No.18 herein – original judgment creditor and the learned Appellate Court has quashed and set aside the order passed by the learned trial Court passed in Execution Petition No.17 of 2001 by rejecting the objections raised by the original defendants – third parties etc. and directing to issue possession warrants against all the respondents – judgment debtors by further directing the appellants herein and others to hand over the peaceful and vacant possession of the suit properties. [2.0] That respondent No.18 – original plaintiff – Roman Catholic Church, Bharuch filed Regular Civil Suit No.106 of 1972 for recovery of possession of the entire property known as 'Nanavati Estate' including portion of the Laljeen Compound together with the structures constructed thereupon situated in Municipal Ward Nos.A to E, No.2191, admeasuring 11152 Sq. yards. That the learned trial Court dismissed the said suit by judgment and decree dated 30.09.1978. That in an appeal being Regular Civil Appeal No.73 of 1978, the District Court, Bharuch allowed the said Appeal and passed the decree directing the appellants herein to hand over the possession of the suit property to the plaintiffs. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned Appellate Court, the appellants herein preferred Civil Revision Application No.1748 of 1980 before this Court, which was dismissed for default. Therefore, the original plaintiff – judgment creditor filed Execution Petition No.17 of 2001 against the present appellants and others. It appears that thereafter the revision application No.1748 of 1980 was restored to file. According to the appellants, the compromise was arrived at between the appellants and respondent No.18 Trust which was reduced in writing, on 29.07.2002 (Exh.106). That the said consent terms/compromise document was produced before this Court in Civil Revision Application No.1748 of 1980 and this Court disposed of the aforesaid revision application. It appears that thereafter the original plaintiff – judgment creditor proceeded further with the aforesaid Execution Petition No.17 of 2001 and the learned Executing Court allowed the said execution petition and directed to issue possession warrants against the appellants and others. That being aggrieved and dissatisfied with the orders passed by the learned Executing Court in Execution Petition No.17 of 2001, the appellants herein preferred Revision Application No.66 of 2004 before the learned District Court, Bharuch. It appears that respondent No.18 also preferred Regular Civil Appeal No.79 of 2004 and the learned Appellate Court by impugned judgment and order dated 03.07.2012 has allowed the said Appeal preferred by respondent No.18 herein – original plaintiff by quashing and setting the order passed by the learned Executing Court in Execution Petition No.17 of 2001 and consequently allowing the said execution application by directing to issue possession warrant against the respondents in the said Appeal inclusive of the appellants herein and directing the appellants and others to hand over the peaceful and vacant possession of the suit properties to the original plaintiff – judgment creditor.
[2.1] It appears that according to the appellants herein, respondent No.18 herein – original plaintiff has not acted as per the consent terms/settlement dated 29.07.2002 (Exh.106) and therefore, he has preferred Regular Civil Suit No.173 of 2005 for specific performance of the said agreement and the same is pending for final disposal before the learned trial Court.
[2.2] Feeling aggrieved and dissatisfied with the judgment and order dated 03.07.2012 passed by the learned Appellate Court in Regular Civil Appeal No.79 of 2004, by which the learned Appellate Court has allowed the said Appeal preferred by respondent No.18 herein – original plaintiff – judgment creditor, the appellants herein have preferred present Second Appeal under Section 100 of the CPC.
[3.0] Shri S.P. Majmudar, learned advocate appearing on behalf of the appellants has made only one submission that while passing the impugned judgment and order, the learned Appellate Court has even given the findings with respect to agreement Exh.106 and has observed that the Agreement dated 29.07.2002 at Exh.106 is unexecutable and that the appellants have failed to perform their part of the contract/agreement. It is submitted that by such observations as such the Regular Civil Suit No.173 of 2005 preferred by the appellants herein would become infructuous. Therefore, it is requested to make suitable observation that the learned Civil Court to decide and dispose of the Regular Civil Suit No.173 of 2005 in accordance with law and on merits and on the basis of the evidence led and without in anyway being influenced by any of the observations made by the learned Appellate Court in paras 86, 93, 97, 98, 104 and 107 while passing the impugned judgment and order in Regular Civil Appeal No.79 of 2004. No other submissions have been made with respect to the validity and legality of the impugned judgment and order passed by the learned Appellate Court except above.
[4.0] Shri Mehul Vakharia, learned advocate appearing on behalf of respondent No.18 – original plaintiff – judgment creditor has stated at the Bar under the instructions from his client that he has no objection to make suitable observation that the learned Civil Court to decide and dispose of the Regular Civil Suit No.173 of 2005 in accordance with law and on merits and all the questions whether Agreement Exh.106 for which the Regular Civil Suit No.173 of 2005 is instituted has become unexecutable or not and/or whether either of the parties have committed breach and/or have complied with the obligation and performance of the said contract/Agreement be kept open which be considered by the learned trial Court in accordance with law and on the basis of the evidence led.
[5.0] Heard Shri Majmudar, learned advocate appearing on behalf of the appellants and Shri Mehul Vakharia, learned advocate appearing on behalf of respondent No.18 herein – original plaintiff – judgment creditor and considered the impugned judgment and order passed by the learned Appellate Court, it appears that the learned trial Court has made some observations in paras 86, 93, 97, 98, 104, 107 with respect to the Agreement Exh.106 for which Regular Civil Suit No.173 of 2005 is pending between the parties. That the learned Appellate Court has observed in the aforesaid paragraphs that the Agreement Exh.106 has become unexecutable and that the appellants have not performed their part of Agreement/Contract. Shri Majmudar, learned advocate appearing on behalf of the appellants is justified in making the grievance that by aforesaid observations as such Regular Civil Suit No.173 of 2005 would become infructuous. Under the circumstances, while confirming the impugned judgment and order dated 03.07.2012 passed by the learned Appellate Court in Regular Civil Appeal No.79 of 2004, it is to be clarified that the learned Civil Court to decide and dispose of the Regular Civil Suit No.173 of 2005 in accordance with law and on merits and on the basis of the evidence led and all the questions with respect to the Agreement Exh.106 to be kept open to be considered by the learned Civil Court in the aforesaid suit inclusive of whether either parties to the Ageement Exh.106 have committed the breach and/or failed to perform their part of contract and/or whether the said Agreement Exh.106 has become unexecutable or not.
[6.0] In view of the above, present Second Appeal is dismissed and the impugned judgment and order dated 03.07.2012 passed by the learned 4th Additional District Judge, Bharuch in Regular Civil Appeal No.79 of 2004 is hereby confirmed, however, with further clarification / observation that the learned Civil Court to decide and dispose of the Regular Civil Suit No.173 of 2005 which has been preferred by the appellants herein for specific performance of the Agreement dated 29.07.2002 (Exh.106), in accordance with law and on merits and on the basis of the evidence led and without in anyway being influenced by the observations made by the learned Appellate Court while passing the impugned order more particularly made in paragraphs 86, 93, 97, 98, 104 and 107 with respect to the Agreement Exh.106 and all the questions in connection with the Agreement dated 29.07.2002 (Exh.106) inclusive of the question whether the said Agreement has become unexecutable or not and/or whether either parties to the Agreement Exh.106 have committed breach and/or failed to perform their part of contract are kept open to be considered by the learned Civil Court in accordance with law and on merits. With this observation, the present Second Appeal is dismissed.
CIVIL APPLICATION NO.9001 OF 2012 In view of the dismissal of main Second Appeal, Civil Application No.9001 of 2012 also deserves to be dismissed and is, accordingly, dismissed.
(M.R. Shah, J.) menon