{"id":51803,"date":"2010-08-11T00:00:00","date_gmt":"2010-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bachubhai-vs-by-on-11-august-2010"},"modified":"2019-01-22T21:19:42","modified_gmt":"2019-01-22T15:49:42","slug":"bachubhai-vs-by-on-11-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bachubhai-vs-by-on-11-august-2010","title":{"rendered":"Bachubhai vs By on 11 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Bachubhai vs By on 11 August, 2010<\/div>\n
Author: M.R. Shah,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCRA\/127\/2009\t 10\/ 10\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nREVISION APPLICATION No. 127 of 2009\n \n\n==========================================\n \n\nBACHUBHAI\nJOITARAM PATEL & 11 - Applicant(s)\n \n\nVersus\n \n\nRAJNIKANT\nNARANBHAI PATEL & 2 - Opponent(s)\n \n\n========================================== \nAppearance\n: \nMR MANOJ S\nJOSHI for Applicant(s) : 1 - 2, 2.2.1, 2.2.2,\n2.2.3,2.2.4 - 12, 12.2.1, 12.2.2, 12.2.3, 12.2.4, 12.2.5, 12.2.6,\n12.2.7,12.2.8  \nNOTICE SERVED BY DS for Opponent(s) : 1 - 3. \nMS\nMITA S PANCHAL for Opponent(s) :\n3, \n==========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/05\/2009 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
1.\tBy
\nway of this Civil Revision Application the  applicants-original
\npurchasers of Special Darkhast No. 3\/1988 have prayed for an
\nappropriate order to quash and set  aside the impugned order dated
\n23\/12\/2008 passed by the learned 2nd Additional Senior
\nCivil Judge, Nadiad below Exh. 1 in Miscellaneous Civil Application
\nNo. 2\/2008 by which the learned executing Court has rejected the
\napplication to take on file the proceedings of Special Darkhast No.
\n3\/1988 and not proceeding further with the applications,  Exhs. 81,
\n84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87  in the Special
\nDarskhast No. 3\/1988 submitted by the applicants under Order 21 Rule
\n95 of the Code of Civil Procedure.\n<\/p>\n
2.\tFew
\nfacts for determination of the present Civil Revision Application in
\nnutshell are as under;\n<\/p>\n
2.1.\tThe
\njudgement and decree came to be passed on 01\/01\/1987 against
\nrespondents nos. 1 and 2-original defendants-original judgement
\ndebtors of Special Civil Suit No. 223\/1983 filed respondent no.
\n3-original plaintiff for recovery of an amount of Rs. 14,77,700\/-.
\nRespondent no. 3-original plaintiff-judgement creditor submitted
\nSpecial Darkhast No. 3\/1988  on 01\/01\/1988 for execution of the
\ndecree.  The petitioners had purchased the land bearing Survey Nos.
\n511, 524 to 540, 514 to 519 and 523 of Mouje Village Vitthalpura,
\nTaluka Memdabad, District Kheda in a Court auction conducted in the
\nSpecial Darkhast No. 3\/1988.  The petitioners had paid the full sale
\nconsideration and the sale in their favour came to be confirmed by
\nthe learned executing Court.  Not only that the sale certificates
\ncame to be issued in favour of the petitioners-original auction
\npurchasers and even the sale deed came to be executed in favour of
\nthe petitioners with respect to the aforesaid land in question by the
\nCourt on 24\/04\/1994.  Thereafter, the petitioners submitted
\napplications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108, 111, 114
\nand 87  before the learned trial Court for delivering actual
\npossession of the aforesaid land in question under Order 21 Rule 95
\nof the Code of Civil Procedure on  25\/07\/1994.  It appears that even
\nafter auctioning\/selling the aforesaid land in question and realizing
\nthe amount, still according to  respondent no. 3-judgement creditor,
\na sum of Rs. 6 lakhs was due and payable under the decree, and,
\ntherefore, for the balance amount of Rs. 6 lakhs, Special Darkhast
\nNo. 3\/1988 was continued by respondent no. 3- judgement creditor.  It
\nappears that during the pendency of the aforesaid applications, Exhs.
\n81,  84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87  submitted by
\nthe petitioners for delivering actual possession under Order 21 Rule
\n95 of the Code of Civil Procedure in Special  Darkhast No. 3\/1988,
\nrespondent no. 3-judgement creditor and respondents nos. 1 and
\n2-judgement debtors settled the dispute with respect to the balance
\namount of Rs. 6 lakhs for an amount of Rs. 1 lakh  and on payment of
\nRs. 1 lakh purshis was submitted by the respondent no. 3-judgement
\ncreditor stating that the decree is now satisfied and, therefore,
\nrespondent no. 3-judgemnet creditor withdrew Special Darkhast No.
\n3\/1988 and\/or requested the learned trial Court to dispose of Special
\nDarkhast No. 3\/1988 by submitting that the decree is fully satisfied.
\n The learned executing Court though the aforesaid applications, Exhs.
\n81,  84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87  submitted by
\nthe petitioners were pending, which were submitted under Order 21
\nRule 95 of the Code of Civil Procedure for delivering actual
\npossession of the properties purchased by them under the Court
\nauction, the learned executing Court disposed of Special Darkhast No.
\n3\/1988 vide order dated 22\/03\/2005.  It appears that thereafter some
\nthird party, Bhailalbhai Somabhai Patel & and others preferred
\nSpecial Civil Suit No. 37\/2007 in the Court of learned Civil Judge
\n(Senior Division), Nadiad on 14\/08\/2007 with respect to the land in
\nquestion purchased by the petitioners in the Court auction in the
\nSpecial Darkhast No. 3\/1988 and the petitioners came to be served
\nwith the summons of the said suit and it is the case on behalf of the
\npetitioners that at that time they came to know about the disposal of
\nSpecial Darkhast No. 3\/1988 without finally deciding and disposing of
\nthe applications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108, 111,
\n114 and 87 submitted by the petitioner under Order 21 Rule 95 of the
\nCode of Civil Procedure and, therefore, the petitioners preferred
\nMiscellaneous Civil Application No. 2\/2008 in Special Darkhast No.
\n3\/1988 requesting the learned executing Court  to recall the order
\ndated 22\/03\/2005 disposing of Special Darkhast No. 3\/1988 to take the
\nsame on file and thereafter to decide and dispose of the
\napplications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108, 111, 114
\nand 87  submitted by the petitioners submitted under Order 21 Rule 95
\nof the Code of Civil Procedure.  The Miscellaneous Civil Application
\nNo. 2\/2008 came to be dismissed by the learned 2nd
\nAdditional Senior Civil Judge, Nadiad vide impugned order dated
\n23\/12\/2008 by holding that the same is beyond the period of
\nlimitation and that the petitioners have not prayed for condonation
\nof  delay and, therefore, the application filed under Section 151 of
\nthe Code of Civil Procedure deserves to be dismissed.  Being
\naggrieved and dissatisfied with the impugned order dated 23\/12\/2008
\npassed by the learned 2nd Additional Senior Civil Judge,
\nNadiad below Exh. 1 in Miscellaneous Civil Application No. 2\/2008,
\nthe petitioners-original purchasers have preferred the present Civil
\nRevision Application.\n<\/p>\n
3.\tThough
\nserved, nobody appears on behalf of the respondents nos. 1 and
\n2-original judgement debtors.\n<\/p>\n
4.\tHeard
\nShri N.D. Nanavati, learned Senior  advocate appearing on behalf of
\nthe petitioners-original purchasers and Ms. Mita Panchal, learned
\nadvocate appearing on behalf of  respondent no. 3-original judgement
\ncreditor.\n<\/p>\n
5.\tShri
\nN.D. Nanavati, learned Senior  advocate appearing on behalf of the
\npetitioners-original purchasers has submitted that admittedly the
\npetitioners have purchased the land in question in a Court auction
\nand have paid the full sale consideration  and the sale certificates
\nhave also been issued in favour of the petitioners and even the sale
\ndeeds have also been executed by the Court in their favour and the
\napplications submitted by the petitioners with respect to actual
\ndelivery of  possession of the disputed land in question were to be
\ndecided by the learned executing Court.  It is submitted that
\ntherefore the learned executing Court was required to decide and
\ndispose of the applications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105,
\n108, 111, 114 and 87  submitted by the petitioners under Order 21
\nRule 95 of the Code of Civil Procedure by actually delivering the
\npossession of the disputed land in question and ought not have
\ndisposed of Special Darkhast No. 3\/1988.  It is further submitted
\nthat even the learned executing Court at the relevant time did not
\nproperly appreciate and\/or consider the purshis\/application submitted
\nby respondent no. 3-judgement creditor.  It was submitted by
\nrespondent no. 3-judgement creditor that after auctioning\/selling the
\nproperty in question in favour of the petitioners and realizing the
\namount, still further sum of Rs. 6 lakhs was due and payable under
\nthe decree and for recovery of the balance amount sum of Rs .6 lakhs,
\nSpecial Darkhast No. 3\/1988 was continued and with respect to the
\nsaid balance amount of Rs. 6 lakhs there was settlement between
\nrespondent no. 3-judgement creditor and respondents nos. 1 and
\n2-judgement debtors for an amount of Rs. 1 lakh and, therefore, it
\nwas submitted that on payment of Rs. 1 lakh, the decree was to be
\nsatisfied.  It is submitted that the learned Judge misconstrued the
\nabove and understood that on payment of Rs. 1 lakh the entire decree
\nshould be satisfied.   It is submitted that there the learned Judge
\ncommitted an error  by  disposing of  Special Darkhast No. 3\/1988 by
\nnot further passing orders on the applications, Exhs. 81,  84, 90,
\n93, 96, 99, 102, 105, 108, 111, 114 and 87 submitted by the
\npetitioners under Order 21 Rule 95 of the Code of Civil Procedure for
\nactual delivery of the possession of the disputed land in question
\npurchased by the petitioner in Court auction for which even the sale
\ndeed have been executed in their favour and, therefore, it is
\nsubmitted that when an application was submitted by the petitioners
\nto take on file the Special Darkhast No. 3\/1988 and to decide and
\ndispose of the applications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105,
\n108, 111, 114 and 87  submitted by the petitioners  under Order 21
\nRule 95 of the Code of Civil Procedure, the learned Judge ought to
\nhave allowed the said applications by restoring Special Darkhast No.
\n3\/1988 to file by further deciding and disposing of the applications,
\nExhs. 81,  84, 90, 93, 96, 99, 102, 105, 108, 111, 114 and 87
\nsubmitted by the petitioners.  It is submitted that as such even the
\napplications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108, 111, 114
\nand 87  submitted by the petitioners under Order 21 Rule 95 of the
\nCode of Civil Procedure could have been treated as an independent
\napplication and ought to have been decided by the learned executing
\nCourt in exercise of powers under Article  151  of the Code of Civil
\nProcedure and, therefore, it is requested to allow the present Civil
\nRevision Application by quashing and setting aside the impugned order
\nand by directing  the learned executing Court to decide and dispose
\nof the applications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108,
\n111, 114 and 87   submitted by the petitioners in accordance with law
\nand on its own merits.\n<\/p>\n
6.\tAs
\nstated hereinabove, though served nobody appears on behalf of
\nrespondents nos. 1 and 2-original judgement debtors.    Ms. Mita
\nPanchal, learned advocate appearing on behalf of respondent no.
\n3-original judgement creditor has fairly conceded that the subsequent
\nsettlement with the judgement debtors was respect to the balance
\namount of Rs. 6 lakhs (after auctioning the properties in question
\nand realizing the amount) and it was settled for an amount of Rs. 1
\nlakh and to that respondent no. 3-judgement creditor submitted that
\non further payment of Rs. 1 lakh the decree is satisfied  and,
\ntherefore, it is requested to pass an appropriate order.\n<\/p>\n
7.\tHeard
\nthe learned advocates appearing on behalf of the respective parties.
\nIt appears that the petitioners are the purchasers of the disputed
\nproperties\/land in question in a Court auction conducted by the Court
\nin Special Darkhast No. 3\/1988.  It is not in dispute that the
\npetitioners have already deposited the entire sale consideration with
\nthe Court and even the learned executing Court had already issued the
\nsale certificates in favour of the respective petitioners with
\nrespect to the land in question.  Thereafter the only order, which
\nwas required to be passed by the learned executing Court, was
\ndelivering the actual possession of the land in question and,
\ntherefore, the petitioners submitted applications, Exhs. 81,  84, 90,
\n93, 96, 99, 102, 105, 108, 111, 114 and 87 under Order 21 Rule 95 of
\nthe Code of Civil Procedure for handing over actual possession of the
\nland in question but during pendency of the aforesaid applications,
\nrespondent no. 3-judgement creditor continued  with the Execution
\nPetition on the ground that still  further sum of Rs.  6 lakhs  was
\ndue and payable under the decree.  It appears that with respect to
\nthe balance amount of Rs. 6 lakhs due and payable under the decree,
\nthere was settlement between respondent no. 3-judgemnet creditor and
\nrespondents nos. 1 and 2-judgement debtors for  a sum of Rs. 1 lakh
\nand, therefore, on further  payment of Rs. 1 lakh,  respondent no.
\n3-judgement creditor submitted an application submitting that the
\ndecree is satisfied and on misinterpreting and\/or misconstruing the
\nsaid application and settlement the learned executing Court disposed
\nof the entire Special Darkhast No. 3\/1988 without passing any order
\non the applications, Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108,
\n111, 114 and 87  submitted by the petitioners-original purchasers
\nunder Order 21 Rule 95 of the Code of Civil Procedure for actually
\ndelivering the possession of the properties purchased by them in a
\nCourt auction.  Since the petitioners came to know about the same the
\npetitioners submitted Miscellaneous Civil Application No. 2\/2008
\nunder Section 151 of the Code of Civil Procedure to restore Special
\nDarkhast No. 3\/1988 to file and thereafter to decide and dispose of
\nthe applications,  Exhs. 81,  84, 90, 93, 96, 99, 102, 105, 108, 111,
\n114 and 87  submitted by the petitioners for actual delivery of the
\npossession under Order 21 Rule 95 of the Code of Civil Procedure,
\nwhich unfortunately the learned executing Court has dismissed on the
\nground that the same is barred by limitation.  Considering the
\naforesaid facts and circumstances of the case when the petitioners
\nhave purchased the properties in question in Court auction and have
\npaid full consideration and even the sale certificates came to be
\nissued by the Court in their favour, the only further order, which
\nwas required to be passed was respect to handing over the actual
\npossession.  As the possession was not handed over the
\npetitioners-purchasers submitted an application under Order 21 Rule
\n95 of the Code of Civil Procedure and as such the said application
\nunder Order 21 Rule 95 of the Code of Civil Procedure submitted by
\nthe petitioners-purchasers were required to be  treated as
\nindependent application and the learned executing Court was required
\nto decide and dispose of the same independently.  Unfortunately, the
\nlearned executing Court disposed of Special Darkhast No. 3\/1988 on
\npayment of Rs. 1 lakh without properly appreciating the fact that the
\naforesaid amount of Rs. 1 lakh  was with respect to the balance
\namount (after auctioning the properties in question in favour of the
\npetitioners in a Court auction and realizing the amount) and,
\ntherefore, it appears that the learned executing Court  has
\nmaterially erred in dismissing Miscellaneous Civil Application No.
\n2\/2008 by not restoring the Special Darkhast No. 3\/1988 to file in
\nexercise of powers under Article 151 of the Code of Civil Procedure.
\nThe learned executing Court ought not to have dismissed the said
\napplication on the ground of delay.  As stated hereinabove even in
\nexercise of powers under Article 151 of the Code of Civil Procedure
\nthe learned executing Court ought to have  passed an order to decide
\nand dispose of the applications, Exhs. 81,  84, 90, 93, 96, 99, 102,
\n105, 108, 111, 114 and 87  submitted by the petitioners-purchasers
\nunder Order 21 Rule 95 of the Code of Civil Procedure independently.\n<\/p>\n
8.\tIn
\nview of the above and for the reasons stated hereinabove, the
\nimpugned order passed by the learned 2nd Additional Senior
\nCivil Judge, Nadiad below Exh. 1 in Miscellaneous Civil Application
\nNo. 2\/2008 deserves to be quashed  and set aside  and Special
\nDarkhast No. 3\/1988 is to be restored to file only for the purpose of
\ndeciding and disposing of the applications, Exhs. 81,  84, 90, 93,
\n96, 99, 102, 105, 108, 111, 114 and 87  submitted by the
\npetitioners-purchasers under Order 21 Rule 95 of the Code of Civil
\nProcedure for delivering the possession of the  disputed land in
\nquestion purchased by the petitioners in a Court auction for which
\nthe sale certificates have been issued in their favour.  Accordingly,
\nthe impugned order passed by the learned 2nd Additional
\nSenior Civil Judge, Nadiad dated 23\/12\/2005 below Exh. 1 in
\nMiscellaneous Civil Application No. 2\/2008 is hereby quashed and set
\naside and  Special Darkhast No. 3\/1988 is restored to file  for the
\npurpose of deciding and disposing of the applications, Exhs. 81,  84,
\n90, 93, 96, 99, 102, 105, 108, 111, 114 and 87  submitted  by the
\npetitioners-purchasers  under Order 21 Rule 95 of Code of Civil
\nProcedure and the learned executing court is hereby directed to
\ndecide and dispose of the applications, Exhs. 81,  84, 90, 93, 96,
\n99, 102, 105, 108, 111, 114 and 87 in Special Darkhast No. 3\/1988 in
\naccordance with law and on its own merits at the earliest but not
\nlater than three months form the date of receipt of the present
\norder.\n<\/p>\n
9.\tWith
\nthis, the present Civil Revision Application is allowed.  Rule is
\nmade absolute to the aforesaid extent.  In the facts and
\ncircumstances of the case, there shall be no order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t(M.R.\n<\/p>\n
SHAH, J.)<\/p>\n
siji<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Bachubhai vs By on 11 August, 2010 Author: M.R. Shah,&Nbsp; Gujarat High Court Case Information System Print 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-51803","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nBachubhai vs By on 11 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bachubhai-vs-by-on-11-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bachubhai vs By on 11 August, 2010 - 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