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SCA/3373/2008 2/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3373 of 2008
To
SPECIAL
CIVIL APPLICATION No. 3376 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RUTABEN
DIPAKBHAI PATEL POA OF SURESHBHAI M PATEL
Versus
RECOVERY
OFFICER AND ANOTHER
=========================================
Appearance
:
MR BS PATEL
for the Petitioner
MR HP RAVAL for Respondent No.1
MR
BIJU A NAIR for Respondent
No.2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 31/07/2008
ORAL
JUDGMENT
1. Heard Mr.B.S.Patel,
learned advocate for the petitioner. The matter requires
consideration.
2. RULE.
Mr.Harin P.Raval, learned Assistant Solicitor General of India,
waives service of Rule on behalf of respondent No.1. Learned
advocate Mr.Nair waives service of Rule on behalf of respondent No.2
? Bank of Baroda.
3. The petitioner,
initially, challenged the action of issuing sale proclamation issued
by the Recovery Officer-II, Debts Recovery Officer-II, Ahmedabad.
Thereafter, a draft amendment was moved and order passed by the
Recovery Officer-I, Debts Recovery Tribunal-II, Ahmedabad below
Exh.T/66 is also challenged.
4. The short question
involved in the matter is as to whether the immovable properties of
the guarantor, which were not mortgaged, could have been included in
the sale proclamation. The subsequent question which arises for
consideration is as to whether the immovable properties, which are in
the name of the family members of the guarantor, could be the subject
matter of sale proclamation.
5. Mr.Nair, learned
advocate for respondent No.3 ? Bank vehemently submitted that the
revenue entries do not decide ownership of the property.
Taking it as an
abstract proposition of law, there cannot be any dispute about it,
but then, in the present case, the facts and the law is required to
be examined by the authority while passing order on Exh.T/66.
6. Without prejudice
to the rights and contentions of both the sites, order dated
22.02.2008 passed below Exh.T/66 in R.P.No.156 is quashed and set
aside. The authority is directed to decide the same afresh after
giving full opportunity to both the sides to present their case,
supporting the same with the decisions of the Hon’ble the Apex Court.
Looking to the age of
the matter, it is directed that the parties shall appear before the
authority initially on 11.08.2008. The authority will then fixed its
own time table for hearing of the matter, giving due priority to
decide the same as expeditiously as possible, preferably within 3
months from the date of the first date of hearing.
7. With these
directions, the petitions are disposed of. Rule is made absolute.
No costs.
(RAVI
R.TRIPATHI, J.)
*Shitole
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