1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellants herein – State of Gujarat and another to quash and set aside the impugned judgement and decree dated 31/08/1988 passed by learned 4th Joint Civil Judge (S.D.), Vadodara in Regular Civil Suit No.421 of 1985 as well as impugned judgement and order dated 07/07/1989 passed by learned Appellate Court i.e. learned Assistant Judge, Vadodara in Regular Civil Appeal No.118 of 1988, by which, learned Appellate Court has dismissed the said appeal by confirming the judgement and decree passed by learned Trial Court in dismissing the suit.
2. Facts leading to the present second appeal, in nutshell, are as under:
It appears that the respondents herein – original defendants instituted Regular Civil Suit No.437 of 1971 against the appellants herein with respect to the land situated at Village: Dolariya of Chhotaudepur taluka, more particularly with respect to written agreement for the sale of teak wood, black wood or ebony trees in respect to about 50 survey numbers of Village: Dolariya. As for deciding the issue in the present second appeal, facts of Regular Civil Suit No. 437 of 1971 are not much relevant and, therefore, this Court has not considered the same in detail. It appears that learned Judge has dismissed Regular Civil Suit No.437 of 1971.
It appears that being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court in Regular Civil Suit No.437 of 1971, original plaintiffs of the said Suit preferred Regular Civil Appeal No.4 of 1975, which came to be allowed by learned Assistant Judge, Vadodara by judgment and order dated 05/05/1979 and learned Appellate Court has allowed the said appeal by quashing and setting aside the judgement and decree passed by learned Trial Court in Regular Civil Suit No.437 of 1971 dismissing the suit.
3. It appears that being aggrieved by and dissatisfied with the judgement and decree dated 05/05/1979 passed by learned Appellate Court in Regular Civil Appeal No.4 of 1975, the appellants herein preferred the Second Appeal No.107 of 1980 before this Court and learned Single Judge of this Court by judgement and order dated 20/11/1980 dismissed the said second appeal confirming the judgement and order passed by learned Appellate Court in Regular Civil Appeal No.4 of 1975.
It appears that thereafter original plaintiffs of Regular Civil Suit No.437 of 1971 preferred Regular Darkhast Application No.306 of 1984 before learned Executing Court and at that stage when the judgement and decree passed by learned Appellate Court in Regular Civil Appeal No.4 of 1975 confirmed by this Court was sought to be executed, the appellants herein – original plaintiffs instituted Regular Civil Suit No.421 of 1985 before learned Trial Court against the respondents herein – original defendants to declare that the judgement and decree dated 05/05/1979 passed by learned Assistant Judge, Vadodara in Regular Civil Appeal No.4 of 1975 confirmed by this Court is not executable in view of the provisions of The Gujarat Private Forests (Acquisition) Act,1972 (hereinafter referred to as “the Act”). That the learned Trial Court by impugned judgement and decree dated 31/08/1988 has dismissed the said suit in view of section 47 of the Code of Civil Procedure as all the contentions with respect to executability of the judgement and decree can be raised before learned Executing Court and for which separate suit is not maintainable and, therefore, learned Trial Court dismissed the said suit by judgement and decree dated 31/08/1988.
4. Being aggrieved by and dissatisfied with the judgement and decree passed by learned 4th Joint Civil Judge (S.D.), Vadodara in Regular Civil Suit No.421 of 1985 in dismissing the same as not maintainable in view of section 47 of the Code of Civil Procedure, the appellants herein – original plaintiffs preferred Regular Civil Appeal No.118 of 1988 before learned District Court, Vadodara and learned Appellate Court i.e. learned Assistant Judge, Vadodara by impugned judgement and order dated 07/07/1989 has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court in Regular Civil Suit No.421 of 1985 dismissing the suit.
Being aggrieved by and dissatisfied with judgement and orders passed by both the Courts below in dismissing the suit as not maintainable in view of section 47 of the Code of Civil Procedure, the appellants herein have preferred the present second appeal under section 100 of the Code of Civil Procedure.
5. At the outset, it is required to be noted that while admitting the present second appeal, learned Single Judge has raised the following substantial question of law.
“(A) Whether the Courts below have erred in not holding that the decree passed in Civil Suit No.437 of 1971 and confirmed in Regular Civil Appeal No.4 of 1975, is not executable in view of the provisions of the Gujarat Private Forests Acquisition Act,1972?
(B) Whether the Courts below have erred in dismissing the proceedings inspite of the clear position of law that after the Gujarat Private Forests Acquisition Act, 1972 having become operative, the private persons do not have any right to the trees and the said rights are vested in the Government and that the private persons are entitled only for compensation?”
6. Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants herein has heavily relied upon provisions of the Gujarat Private Forests (Acquisition) Act,1972 and has submitted that in view of clear position of law that after the aforesaid Act of 1972, private persons do not have any right to the trees and the said rights are vested in the Government and that the private persons are entitled only for compensation, the judgement and decree passed by learned Lower Appellate Court in Regular Civil Appeal No.4 of 1975 is not executable. Therefore, learned Trial Court ought to have considered the same on merits and ought to have granted declaration as prayed for. It is submitted that both the Courts below have not considered anything on merits and dismissed the said suit mainly on the ground that the suit is not maintainable in view of provision of section 47 of the Code of Civil Procedure.
By making above submissions, it is requested to admit/allow the present second appeal.
7. Mr.Yatin Soni, learned advocate appearing on behalf of the contesting respondents has submitted that in view of section 47 of the Code of Civil Procedure, no illegality has been committed by both the Courts below in dismissing the suit by observing that Whether the judgement and decree passed by learned Lower Appellate Court in Regular Civil Appeal No.4 of 1975 is unexecutable can be considered by the Executing Court in view of section 47 of the Code of Civil Procedure and the same can be raised before learned Executing Court. He has also stated at the bar that respondents herein – judgement creditors shall not take any objections, if such a contention is raised by the appellants before learned Executing Court that judgement and decree passed by learned Lower Appellate Court in Regular Civil Appeal No.4 of 1975, which is sought to be executed in Execution Petition No.306 of 1984, is unexecutable in view of provisions of Forest Act,1972. He has also stated at the bar that no objection shall be raised by contesting respondent – judgement creditor if such a contention is raised before learned Appellate Court (Executing Court). Even considering section 47 of the Code of Civil Procedure, even the question with respect to execubility of the judgement and decree, which is sought to be executed, can be considered by learned Executing Court and for which separate suit is not required to be filed and separate suit is not maintainable.
By making above submissions, it is requested to dismiss the present second appeal.
8. Heard learned advocates appearing on behalf of the respective parties and considered the impugned judgement and order passed by both the Courts below.
9. At the outset, it is required to be noted that the appellants herein – original plaintiffs instituted Regular Civil Suit No.421 of 1985 before learned Trial Court against the respondents herein – original defendants to declare that judgement and order dated 05/05/1979 passed by learned Assistant Judge, Vadodara in Regular Civil Appeal No.4 of 1975 confirmed by this Court is not executable in view of the provisions of the Act. However, learned Trial Court dismissed the said suit by judgement and decree dated 31/08/1988, which came to be confirmed by learned Appellate Court on the ground that in view of section 47 of the Code of Civil Procedure as all the contentions with respect to executablility can be raised before learned Executing Court and for which separate suit is not maintainable. Considering Section 47 of the Code of Civil Procedure, it cannot be said that learned Trial Court has committed any error in dismissing the said suit and the same is rightly confirmed by learned Appellate Court. As stated hereinabove, even it is the case on behalf of the respondents herein that all the questions inclusive of Whether judgment and decree, which is sought to be executable, is executable or not, can be raised before learned Executing Court, which can be considered by learned Executing Court in accordance with law and on merits.
Under the circumstances, without expressing anything on merits Whether the judgement and decree passed by learned Assistant Judge, Vadodara in Regular Civil Appeal No.4 of 1975 decreeing the Regular Civil Suit No.437 of 1971 is executable or not in view of the provisions of The Gujarat Private Forests (Acquisition) Act,1972 and keeping all the issues open to be decided by learned Executing Court, the present second appeal deserves to be dismissed.
10. In view of the above and for the reasons stated hereinabove and keeping all the questions open with respect to contentions on behalf of the appellants herein that in view of the provisions of The Gujarat Private Forests (Acquisition) Act,1972, judgement and decree, which is sought to be executed by filing Regular Darkahst Application No.306 of 1984 is now executable or not as well as Whether in view of the aforesaid Act whether any private persons have any right to the trees and the said right is vested in the Government and private person is entitled to the compensation only, the aforesaid is to be considered by learned Executing Court considering section 47 of the Code of Civil Procedure. In view of the above, the present second appeal deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti