The challenge is made in this petition to the order passed in Execution Petition No.152 of 2011 by the learned Chamber Judge, City Civil Court, Ahmedabad on 23rd February, 2012.
Learned advocate Shri Tattvam K. Patel appearing for the judgment-debtor, petitioner herein, submitted that there is no application under Order-XXI, Rule-13 CPC and the application preferred under Order XXI Rule 11 CPC would not be sufficient for the Court to issue order/warrant of attachment in respect of the immovable property. He further urged that there are long drawn litigations between the parties and the respondent has attempted to harass the judgment-debtor by preferring frivolous litigations. It is the say of learned advocate that a sum of Rs.1,05,000/- has already been paid in the spirit of compromise arrived at by and between the parties in H.R.P. Suit. He is willing to abide by the compromise and also to hand over the possession but there is an apprehension in the mind of the judgment-debtor that in absence of any description in the warrant, his entire building may be attached.
On having heard learned advocate for the petitioner and on having examined the impugned order, it can be noted that the order merely speaks of issuance of the warrant of attachment for immovable property against the present petitioner. However, the same cannot be looked in isolation and application preferred for execution of the decree passed on 16.04.2005 in H.R.P. Suit No.306 of 2005; pursuant to the compromise arrived at between the parties, shall also need to be regarded with the Appendix. There has been categorical description of the suit property; as it can be seen from the schedule of the first Appendix in Column No.6 given under Order-XXI, Rule-11 of Column No.10. This specifies the suit property which is to be handed over to the present respondent. There is no dispute having regard to the description given in Column No.10, nor is any error pointed out in the measurement of the suit property i.e., Shop no.32, admeasuring.3x3.04, sq. mtrs., situated in Kalarav Complex, Opp. Maninagar Railway Station, Final Plot No. 124/77 in 4(B) TP Scheme, Maninagar. Submission made by the learned Advocate with regard to absence of any application under Order XXI, Rule 13 CPC prior to the court's issuance of attachment warrant, though may technically and procedurally sound attractive, the same on close scrutiny holds no ground. Compromise arrived at between the parties and the decree drawn on the basis thereof is not in the realm of any ambiguity. Again, as mentioned hereinabove, petition preferred under Article 227 of the Constitution is based on the description reflected in the decree itself. There is hardly any cause of apprehension. Decree since is not yet satisfied, issuance of warrant simply cannot be found fault with. Resultantly, in this petition under Article 227 of the Constitution, no interference is warranted. Needless to specify, as a parting note, that the attachment warrant shall have to be restricted to the description specified in Column No.10 of the Appendix to the Schedule of Execution Petition.
In light of the above, this petition stands disposed of.
{Ms.
Sonia Gokani, J.} Prakash* Top