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SCA/11444/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11444 of 2011
=======================================================
RAMANLAL
BAKULBHAI ADITYA - Petitioner(s)
Versus
GAUTAMBHAI
KESHAVLAL DATANIYA - Respondent(s)
=======================================================
Appearance :
MR
RC KAKKAD for Petitioner(s) : 1,
None for Respondent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 23/08/2011
ORAL
ORDER
The
present petition has been filed by the petitioner under Articles 226
and 227 of the Constitution
of India for the prayer that appropriate writ, order or
direction may be issued quashing and setting aside the order passed
by the Learned 4th Additional Sr. Civil Judge, Gandhinagar
below application, Exh.1 in Regular Civil Darkhast No.3 of 2011 and
also prayed that status quo ante may be granted with regard to suit
property on the grounds set out in the memo of petition.
Heard
learned counsel, Mr.R.C. Kakkad for the petitioner.
Learned
counsel, Mr.Kakkad has referred to the petition as well as the
grounds and submitted that the Suit was filed for declaration and,
therefore, the decree for handing over possession could not have been
passed, which the Court below has not appreciated. He referred to the
impugned order and submitted that the petitioner and the respondent
are closed relatives and it is in this circumstances, the impugned
order may be set aside as it would affect his possession. He has also
submitted that since they are closely related, some writing or
document was executed for the purpose of loan only, which has not
been appreciated. Therefore, the impugned order passed in execution
proceedings may be set aside or stayed. Alternatively, he has also
submitted that since Civil Appeal is pending, till the appeal is
heard, the Court may pass appropriate order for protecting the
possession.
The
submissions made by the learned counsel, Mr.Kakkad cannot be accepted
for the simple reason that admittedly the Suit has been filed, which
has been decreed and in execution proceedings, the order came to be
passed. The petitioner herein would have right of objecting including
raising all contentions that the decree is not proper or it is going
beyond the controversy in the Suit, which has not been done. The
petitioner also had right of filing Appeal. In fact, the Appeal has
been preferred, where he could have prayed for interim order.
Therefore, as there is delay, he cannot make any grievances and could
not take appropriate states within the reasonable time. In fact,
still with an application for condonation of delay, he can have his
remedy in Appeal. Further, the contention which has been raised with
regard to the writing or document executed for the purpose of loan,
which is stated to have been exploited is again a matter of evidence.
As it transpires from the record, there were criminal complaints and
the writing is also executed, for which, this Court is not required
to consider in exercise of discretion under Articles 226 and 227 of
the Constitution
of India once the Competent Court has passed the decree
based on evidence. Therefore, without any further elaboration,
considering the other details with regard to appreciation of
evidence, which has been discussed in the order of the Court passed
in Regular Civil Suit No.315 of 2007 and also in the order passed
below application, Exh.1 in Regular Civil Darkhast No.3 of 2011, the
discretion cannot be exercised as prayed for. The impugned order
passed below application, Exh.1 in Regular Civil Darkhast No.3 of
2011 clearly states that the decree was passed for handing over the
possession within stipulated period and if at all, there was any
grievance, the petitioner could have filed appropriate proceedings.
It has also been discussed that after providing sufficient
opportunity of the hearing, the decree has been passed and,
therefore, there is no reason to stall the execution. It is well
accepted that once the decree is passed, normally the Court should be
slow in interfering even in exercise of appellate jurisdiction.
Therefore, the present petition cannot be entertained and deserves to
be dismissed in limine.
Accordingly,
the present petition stands dismissed in limine.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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