Special Civil Application No. 14848 of 2014. Case: Bhadresh Fakirchand Shah and Ors. Vs Jamubai Revabhai Patel and Ors.. Gujarat High Court

Case Number:Special Civil Application No. 14848 of 2014
Party Name:Bhadresh Fakirchand Shah and Ors. Vs Jamubai Revabhai Patel and Ors.
Counsel:For Appellant: K.J. Brahmbhatt, Varsha Brahmbhatt and Pooja H. Bhardwaj, Advocates and For Respondents: P.C. Kavina, Sr. Advocate for A.B. Munshi, Advocate
Judges:A.J. Desai, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XXXIX Rules 1, 2; Section 96; Constitution of India - Article 227; Limitation Act, 1963 - Section 5
Judgement Date:March 30, 2017
Court:Gujarat High Court
 
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Judgment:

A.J. Desai, J.

  1. By way of the present petition under Article 227 of the Constitution of Indian, the petitioners have challenged an order dated 16.07.2014 passed by the 5th Additional District Judge, Surat in Civil Misc. Application No. 162 of 2011, by which the application filed by the present petitioners under Section 5 of the Limitation Act has been rejected.

  2. Pursuant to notice issued by this Court, the respondent No. 1 has filed his affidavit and opposed grant of any relief as prayed for.

  3. Though the question before this Court is in narrow compass, it is required to be dealt with keep in mind all relevant facts arose, during pendency of hearing of the petition, before the Appellate Court, which are as under:

    3.1. That a piece of land bearing Survey No. 74, situated at village Jahangirabad, Taluka Choryasi, District Surat known as "Ghasiya land" (grass land) [which is herein after referred to as 'the disputed property'] belonged to one Balubhai Bhikhabhai Patel. An agreement to sale was executed by said Balubhai Patel in favour of Jamubhai Revabhai Patel - present respondent No. 1 - (original plaintiff) for the consideration referred therein as well as on compliance of certain terms and conditions. Shri Balubhai died on 16.12.1991. Subsequent to his death, his wife namely Kantaben became the owner of the said property. Jamubhai Revabhai Patel filed Special Civil Suit No. 264 of 1993 in the Court of Civil Judge (S.D.), Surat against Kantaben, widow of Balubhai Patel for specific performance with regard to the agreement to sale executed by her late husband. She was served with summons issued by the Court and thereafter, she appeared through an advocate. The plaintiff had also filed an application under Order 39 and Rule 1 - 2 of the Code of Civil Procedure, 1908 [herein after referred to as ' the Code'] for interim relief, which was granted by the concerned Court. The suit remained pending for a considerable long time.

    3.2 In the year 2009, the advocate appearing for the plaintiff, argued the matter. However, neither the defendant Kantaben nor her advocate appeared before the Court and therefore, the stage of the hearing of the arguments of the defendant came to be closed by the concerned Civil Court. Ultimately, the suit was decreed in favour of the plaintiff on 31.3.2010.

    3.3. The respondent - original plaintiff filed execution petition being Special Execution Application No. 18 of 2010 in the Court of learned Senior Civil Judge, Surat. When the notice was issued in the execution proceedings, a report was submitted by the bailiff of the Court that in the part of the land, in a house, one Jagrutiben Rameshbhai Patel was found and she had declared that she is a grand daughter of Kantaben - original defendant, who had died on 05.12.2009. Since, Jagrutiben Rameshbhai Patel claimed herself as grand daughter of the deceased Kantaben, the Executing Court directed the plaintiff to join her as opponent in the execution proceedings. Accordingly, she was joined as party - opponent in the execution proceedings. Though, summons was served, she did not appeared before the Court nor raised any objections with regard to the execution proceedings. Ultimately, the decree was executed through the Court Commissioner and a sale deed was executed in favour of the present respondent for part of the land admeasuring 822 sq.mtrs.

    3.4. When the execution proceedings was pending, the present petitioners filed an appeal under Section 96 of the Code challenging the decree dated 31.03.2010 passed in Special Civil Suit No. 264 of 1993. An application for leave to appeal was filed since they were not party to the suit proceedings. An application under Section 5 of the Limitation Act...

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