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CRA/127/2009 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 127 of 2009
==========================================
BACHUBHAI
JOITARAM PATEL & 11 - Applicant(s)
Versus
RAJNIKANT
NARANBHAI PATEL & 2 - Opponent(s)
==========================================
Appearance
:
MR MANOJ S
JOSHI for Applicant(s) : 1 - 2, 2.2.1, 2.2.2,
2.2.3,2.2.4 - 12, 12.2.1, 12.2.2, 12.2.3, 12.2.4, 12.2.5, 12.2.6,
12.2.7,12.2.8
NOTICE SERVED BY DS for Opponent(s) : 1 - 3.
MS
MITA S PANCHAL for Opponent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/05/2009
ORAL
ORDER
1. By
way of this Civil Revision Application the applicants-original
purchasers of Special Darkhast No. 3/1988 have prayed for an
appropriate order to quash and set aside the impugned order dated
23/12/2008 passed by the learned 2nd Additional Senior
Civil Judge, Nadiad below Exh. 1 in Miscellaneous Civil Application
No. 2/2008 by which the learned executing Court has rejected the
application to take on file the proceedings of Special Darkhast No.
3/1988 and not proceeding further with the applications, Exhs. 81,
84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87 in the Special
Darskhast No. 3/1988 submitted by the applicants under Order 21 Rule
95 of the Code of Civil Procedure.
2. Few
facts for determination of the present Civil Revision Application in
nutshell are as under;
2.1. The
judgement and decree came to be passed on 01/01/1987 against
respondents nos. 1 and 2-original defendants-original judgement
debtors of Special Civil Suit No. 223/1983 filed respondent no.
3-original plaintiff for recovery of an amount of Rs. 14,77,700/-.
Respondent no. 3-original plaintiff-judgement creditor submitted
Special Darkhast No. 3/1988 on 01/01/1988 for execution of the
decree. The petitioners had purchased the land bearing Survey Nos.
511, 524 to 540, 514 to 519 and 523 of Mouje Village Vitthalpura,
Taluka Memdabad, District Kheda in a Court auction conducted in the
Special Darkhast No. 3/1988. The petitioners had paid the full sale
consideration and the sale in their favour came to be confirmed by
the learned executing Court. Not only that the sale certificates
came to be issued in favour of the petitioners-original auction
purchasers and even the sale deed came to be executed in favour of
the petitioners with respect to the aforesaid land in question by the
Court on 24/04/1994. Thereafter, the petitioners submitted
applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108, 111, 114
and 87 before the learned trial Court for delivering actual
possession of the aforesaid land in question under Order 21 Rule 95
of the Code of Civil Procedure on 25/07/1994. It appears that even
after auctioning/selling the aforesaid land in question and realizing
the amount, still according to respondent no. 3-judgement creditor,
a sum of Rs. 6 lakhs was due and payable under the decree, and,
therefore, for the balance amount of Rs. 6 lakhs, Special Darkhast
No. 3/1988 was continued by respondent no. 3- judgement creditor. It
appears that during the pendency of the aforesaid applications, Exhs.
81, 84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87 submitted by
the petitioners for delivering actual possession under Order 21 Rule
95 of the Code of Civil Procedure in Special Darkhast No. 3/1988,
respondent no. 3-judgement creditor and respondents nos. 1 and
2-judgement debtors settled the dispute with respect to the balance
amount of Rs. 6 lakhs for an amount of Rs. 1 lakh and on payment of
Rs. 1 lakh purshis was submitted by the respondent no. 3-judgement
creditor stating that the decree is now satisfied and, therefore,
respondent no. 3-judgemnet creditor withdrew Special Darkhast No.
3/1988 and/or requested the learned trial Court to dispose of Special
Darkhast No. 3/1988 by submitting that the decree is fully satisfied.
The learned executing Court though the aforesaid applications, Exhs.
81, 84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87 submitted by
the petitioners were pending, which were submitted under Order 21
Rule 95 of the Code of Civil Procedure for delivering actual
possession of the properties purchased by them under the Court
auction, the learned executing Court disposed of Special Darkhast No.
3/1988 vide order dated 22/03/2005. It appears that thereafter some
third party, Bhailalbhai Somabhai Patel & and others preferred
Special Civil Suit No. 37/2007 in the Court of learned Civil Judge
(Senior Division), Nadiad on 14/08/2007 with respect to the land in
question purchased by the petitioners in the Court auction in the
Special Darkhast No. 3/1988 and the petitioners came to be served
with the summons of the said suit and it is the case on behalf of the
petitioners that at that time they came to know about the disposal of
Special Darkhast No. 3/1988 without finally deciding and disposing of
the applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108, 111,
114 and 87 submitted by the petitioner under Order 21 Rule 95 of the
Code of Civil Procedure and, therefore, the petitioners preferred
Miscellaneous Civil Application No. 2/2008 in Special Darkhast No.
3/1988 requesting the learned executing Court to recall the order
dated 22/03/2005 disposing of Special Darkhast No. 3/1988 to take the
same on file and thereafter to decide and dispose of the
applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108, 111, 114
and 87 submitted by the petitioners submitted under Order 21 Rule 95
of the Code of Civil Procedure. The Miscellaneous Civil Application
No. 2/2008 came to be dismissed by the learned 2nd
Additional Senior Civil Judge, Nadiad vide impugned order dated
23/12/2008 by holding that the same is beyond the period of
limitation and that the petitioners have not prayed for condonation
of delay and, therefore, the application filed under Section 151 of
the Code of Civil Procedure deserves to be dismissed. Being
aggrieved and dissatisfied with the impugned order dated 23/12/2008
passed by the learned 2nd Additional Senior Civil Judge,
Nadiad below Exh. 1 in Miscellaneous Civil Application No. 2/2008,
the petitioners-original purchasers have preferred the present Civil
Revision Application.
3. Though
served, nobody appears on behalf of the respondents nos. 1 and
2-original judgement debtors.
4. Heard
Shri N.D. Nanavati, learned Senior advocate appearing on behalf of
the petitioners-original purchasers and Ms. Mita Panchal, learned
advocate appearing on behalf of respondent no. 3-original judgement
creditor.
5. Shri
N.D. Nanavati, learned Senior advocate appearing on behalf of the
petitioners-original purchasers has submitted that admittedly the
petitioners have purchased the land in question in a Court auction
and have paid the full sale consideration and the sale certificates
have also been issued in favour of the petitioners and even the sale
deeds have also been executed by the Court in their favour and the
applications submitted by the petitioners with respect to actual
delivery of possession of the disputed land in question were to be
decided by the learned executing Court. It is submitted that
therefore the learned executing Court was required to decide and
dispose of the applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105,
108, 111, 114 and 87 submitted by the petitioners under Order 21
Rule 95 of the Code of Civil Procedure by actually delivering the
possession of the disputed land in question and ought not have
disposed of Special Darkhast No. 3/1988. It is further submitted
that even the learned executing Court at the relevant time did not
properly appreciate and/or consider the purshis/application submitted
by respondent no. 3-judgement creditor. It was submitted by
respondent no. 3-judgement creditor that after auctioning/selling the
property in question in favour of the petitioners and realizing the
amount, still further sum of Rs. 6 lakhs was due and payable under
the decree and for recovery of the balance amount sum of Rs .6 lakhs,
Special Darkhast No. 3/1988 was continued and with respect to the
said balance amount of Rs. 6 lakhs there was settlement between
respondent no. 3-judgement creditor and respondents nos. 1 and
2-judgement debtors for an amount of Rs. 1 lakh and, therefore, it
was submitted that on payment of Rs. 1 lakh, the decree was to be
satisfied. It is submitted that the learned Judge misconstrued the
above and understood that on payment of Rs. 1 lakh the entire decree
should be satisfied. It is submitted that there the learned Judge
committed an error by disposing of Special Darkhast No. 3/1988 by
not further passing orders on the applications, Exhs. 81, 84, 90,
93, 96, 99, 102, 105, 108, 111, 114 and 87 submitted by the
petitioners under Order 21 Rule 95 of the Code of Civil Procedure for
actual delivery of the possession of the disputed land in question
purchased by the petitioner in Court auction for which even the sale
deed have been executed in their favour and, therefore, it is
submitted that when an application was submitted by the petitioners
to take on file the Special Darkhast No. 3/1988 and to decide and
dispose of the applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105,
108, 111, 114 and 87 submitted by the petitioners under Order 21
Rule 95 of the Code of Civil Procedure, the learned Judge ought to
have allowed the said applications by restoring Special Darkhast No.
3/1988 to file by further deciding and disposing of the applications,
Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87
submitted by the petitioners. It is submitted that as such even the
applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108, 111, 114
and 87 submitted by the petitioners under Order 21 Rule 95 of the
Code of Civil Procedure could have been treated as an independent
application and ought to have been decided by the learned executing
Court in exercise of powers under Article 151 of the Code of Civil
Procedure and, therefore, it is requested to allow the present Civil
Revision Application by quashing and setting aside the impugned order
and by directing the learned executing Court to decide and dispose
of the applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108,
111, 114 and 87 submitted by the petitioners in accordance with law
and on its own merits.
6. As
stated hereinabove, though served nobody appears on behalf of
respondents nos. 1 and 2-original judgement debtors. Ms. Mita
Panchal, learned advocate appearing on behalf of respondent no.
3-original judgement creditor has fairly conceded that the subsequent
settlement with the judgement debtors was respect to the balance
amount of Rs. 6 lakhs (after auctioning the properties in question
and realizing the amount) and it was settled for an amount of Rs. 1
lakh and to that respondent no. 3-judgement creditor submitted that
on further payment of Rs. 1 lakh the decree is satisfied and,
therefore, it is requested to pass an appropriate order.
7. Heard
the learned advocates appearing on behalf of the respective parties.
It appears that the petitioners are the purchasers of the disputed
properties/land in question in a Court auction conducted by the Court
in Special Darkhast No. 3/1988. It is not in dispute that the
petitioners have already deposited the entire sale consideration with
the Court and even the learned executing Court had already issued the
sale certificates in favour of the respective petitioners with
respect to the land in question. Thereafter the only order, which
was required to be passed by the learned executing Court, was
delivering the actual possession of the land in question and,
therefore, the petitioners submitted applications, Exhs. 81, 84, 90,
93, 96, 99, 102, 105, 108, 111, 114 and 87 under Order 21 Rule 95 of
the Code of Civil Procedure for handing over actual possession of the
land in question but during pendency of the aforesaid applications,
respondent no. 3-judgement creditor continued with the Execution
Petition on the ground that still further sum of Rs. 6 lakhs was
due and payable under the decree. It appears that with respect to
the balance amount of Rs. 6 lakhs due and payable under the decree,
there was settlement between respondent no. 3-judgemnet creditor and
respondents nos. 1 and 2-judgement debtors for a sum of Rs. 1 lakh
and, therefore, on further payment of Rs. 1 lakh, respondent no.
3-judgement creditor submitted an application submitting that the
decree is satisfied and on misinterpreting and/or misconstruing the
said application and settlement the learned executing Court disposed
of the entire Special Darkhast No. 3/1988 without passing any order
on the applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108,
111, 114 and 87 submitted by the petitioners-original purchasers
under Order 21 Rule 95 of the Code of Civil Procedure for actually
delivering the possession of the properties purchased by them in a
Court auction. Since the petitioners came to know about the same the
petitioners submitted Miscellaneous Civil Application No. 2/2008
under Section 151 of the Code of Civil Procedure to restore Special
Darkhast No. 3/1988 to file and thereafter to decide and dispose of
the applications, Exhs. 81, 84, 90, 93, 96, 99, 102, 105, 108, 111,
114 and 87 submitted by the petitioners for actual delivery of the
possession under Order 21 Rule 95 of the Code of Civil Procedure,
which unfortunately the learned executing Court has dismissed on the
ground that the same is barred by limitation. Considering the
aforesaid facts and circumstances of the case when the petitioners
have purchased the properties in question in Court auction and have
paid full consideration and even the sale certificates came to be
issued by the Court in their favour, the only further order, which
was required to be passed was respect to handing over the actual
possession. As the possession was not handed over the
petitioners-purchasers submitted an application under Order 21 Rule
95 of the Code of Civil Procedure and as such the said application
under Order 21 Rule 95 of the Code of Civil Procedure submitted by
the petitioners-purchasers were required to be treated as
independent application and the learned executing Court was required
to decide and dispose of the same independently. Unfortunately, the
learned executing Court disposed of Special Darkhast No. 3/1988 on
payment of Rs. 1 lakh without properly appreciating the fact that the
aforesaid amount of Rs. 1 lakh was with respect to the balance
amount (after auctioning the properties in question in favour of the
petitioners in a Court auction and realizing the amount) and,
therefore, it appears that the learned executing Court has
materially erred in dismissing Miscellaneous Civil Application No.
2/2008 by not restoring the Special Darkhast No. 3/1988 to file in
exercise of powers under Article 151 of the Code of Civil Procedure.
The learned executing Court ought not to have dismissed the said
application on the ground of delay. As stated hereinabove even in
exercise of powers under Article 151 of the Code of Civil Procedure
the learned executing Court ought to have passed an order to decide
and dispose of the applications, Exhs. 81, 84, 90, 93, 96, 99, 102,
105, 108, 111, 114 and 87 submitted by the petitioners-purchasers
under Order 21 Rule 95 of the Code of Civil Procedure independently.
8. In
view of the above and for the reasons stated hereinabove, the
impugned order passed by the learned 2nd Additional Senior
Civil Judge, Nadiad below Exh. 1 in Miscellaneous Civil Application
No. 2/2008 deserves to be quashed and set aside and Special
Darkhast No. 3/1988 is to be restored to file only for the purpose of
deciding and disposing of the applications, Exhs. 81, 84, 90, 93,
96, 99, 102, 105, 108, 111, 114 and 87 submitted by the
petitioners-purchasers under Order 21 Rule 95 of the Code of Civil
Procedure for delivering the possession of the disputed land in
question purchased by the petitioners in a Court auction for which
the sale certificates have been issued in their favour. Accordingly,
the impugned order passed by the learned 2nd Additional
Senior Civil Judge, Nadiad dated 23/12/2005 below Exh. 1 in
Miscellaneous Civil Application No. 2/2008 is hereby quashed and set
aside and Special Darkhast No. 3/1988 is restored to file for the
purpose of deciding and disposing of the applications, Exhs. 81, 84,
90, 93, 96, 99, 102, 105, 108, 111, 114 and 87 submitted by the
petitioners-purchasers under Order 21 Rule 95 of Code of Civil
Procedure and the learned executing court is hereby directed to
decide and dispose of the applications, Exhs. 81, 84, 90, 93, 96,
99, 102, 105, 108, 111, 114 and 87 in Special Darkhast No. 3/1988 in
accordance with law and on its own merits at the earliest but not
later than three months form the date of receipt of the present
order.
9. With
this, the present Civil Revision Application is allowed. Rule is
made absolute to the aforesaid extent. In the facts and
circumstances of the case, there shall be no order as to costs.
(M.R.
SHAH, J.)
siji
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