1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellants herein – original plaintiffs to quash and set aside the impugned judgement and decree dated 20/07/1998 passed by learned Trial Court i.e. learned Joint Civil Judge (J.D.), Talaja in Regular Civil Suit No.32 of 1982 as well as impugned judgement and order dated 14/09/2011 passed by learned Appellate Court i.e. learned 3rd Additional District Judge, Bhavnagar, Camp at Mahuva in Regular Civil Appeal No.68 of 1998, by which, learned Appellate Court has dismissed the said appeal preferred by the original plaintiff by confirming the judgement and decree passed by learned Trial Court dismissing the suit.
2. That the appellants herein – original plaintiffs instituted Regular Civil Suit No.32 of 1982 in the court of learned Joint Civil Judge (J.D.), Talaja for declaration basically challenging the order dated 24/03/1982 passed by learned Executing Court passed below Exh.24 in Regular Execution Petition No.16 of 1977, by which, learned Executing Court has issued possession warrant with respect to suit property in question and, thereafter possession was handed over to the defendants- auction purchasers. That learned Trial Court by judgement and decree dated 20/07/1998 dismissed the said suit by holding that such a suit challenging the order passed by learned Executing Court would not be maintainable and if at all, original plaintiff was aggrieved by the same, either he could have preferred the appeal before learned Appellate Court or he could have submitted an objections against the possession warrant before learned Executing Court and consequently learned Trial Court has dismissed the suit.
3. Being aggrieved by and dissatisfied with the judgement and decree dated 20/07/1998 passed by learned Joint Civil Judge (J.D.), Talaja in Regular Civil Suit No.32 of 1982, original plaintiff instituted/preferred Regular Civil Appeal No.68 of 1998 before learned District Court. It appears that during the pendency of the said appeal, original appellant died and, therefore, the appellants were joined as heirs and legal representatives of original appellant. By impugned judgement and order dated 14/09/2011, the learned Appellate Court has dismissed the said appeal by confirming the judgement and decree passed by learned Trial Court dismissing the suit.
4. Having heard Mr.Thakore, learned advocate appearing on behalf of the appellants herein – original plaintiffs and Mr.Panthil Majmudar, learned advocate appearing on behalf of the contesting respondents herein and considering the impugned judgement and orders passed by both the Courts below and considering the fact that as such the plaintiff instituted suit challenging the order passed by learned Executing Court below Exh.24 in Execution Petition No.16 of 1977 and considering section 47 of the Code of Civil Procedure and considering Order 21 Rule 97 of the Code of Civil Procedure, it cannot be said that both the Courts below have committed any error and/or illegality in dismissing the suit on the ground that the same is not maintainable. As it is rightly observed by both the Courts below that if the original plaintiff was aggrieved by the order passed by learned Executing Court below Exh.24 in Regular Execution Petition No.16 of 1977, in that case, he could have challenged the same before learned Appellate Court and/or before appropriate court. As it is rightly observed by both the Courts below that if the plaintiff was aggrieved by possession warrant and other grievance with respect to suit property for which possession warrant is issued, in that case, he was required to submit objections before learned Executing Court. Admittedly, the plaintiff has failed to avail the aforesaid remedy. Considering section 47 of the Code of Civil Procedure, separate suit was barred and, therefore, no illegality has been committed by learned Trial Court in dismissing the suit and the same is rightly confirmed by learned Appellate Court.
5. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal and the Civil Application and the same deserve to be dismissed and are accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti