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Balubhai Dahyabhai Shroff and ors. Vs. Govindbhai Dayalbhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 634 of 1960
Judge
Reported inAIR1963Guj117; (1963)0GLR520
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 115 - Order 21, Rules 97 and 98
AppellantBalubhai Dahyabhai Shroff and ors.
RespondentGovindbhai Dayalbhai
Appellant Advocate B.G. Thakor, Adv.
Respondent Advocate N.R. Oza, Adv.
DispositionRevision allowed
Cases ReferredLila v. Mahange
Excerpt:
- - the learned judge was therefore clearly wrong in exercising jurisdiction, which was not vested in him in regard to the property purchased at private sale. section 115, civil procedure code reads as follows :the high court may call for the record of any case which has been decided by any court subordinate to such high court and in which no appeal lies thereto and if such subordinate court appears -(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the high court may make such order in the case as it thinks fit......therefore clearly wrong in exercising jurisdiction, which was not vested in him in regard to the property purchased at private sale.3. it is, however, contended by the learned counsel for the opponent relying on sarvi begam v. taj begam, ilr 36 all 181 : (air 1914 all 511(1)), that a judgment-debtor cannot resist a warrant for possession. this principle can apply only if the warrant is restricted to the property referred to in order 21, rule 97, c. p. code. in other words, if the warrant is for possession in respect of the property to which the decree for possession of immoveable property relates or if it is the property purchased in execution of a decree. if the warrant relates to the property purchased at private sale anybody can resist the giving of possession by a court in.....
Judgment:
ORDER

V.B. Raju, J.

1. The opponent filed a Darkhast for the possession of half the share of the property wines be had purchased in the execution of a money decree. But subsequently fie gave another application for the possession of the whole share in the property namely. Survey No. 97, on the ground that fie was entitled to possession of the other half also by reason of a private sale by the co-sharer. The Teamed Judge rejected the contention of the judgment-debtors, and ordered that warrant for possession for whole of the disputed property Survey No. 97 should be issued. In revision, this order is challenged.

2. In my opinion, the learned Judge below has acted beyond the jurisdiction vested in him. Under Order 21, Rule 97 and Rule 98, Civil Procedure Code, the executing Court can order the delivery of possession of immoveable property in execution proceedings if the decree is for possessionof the immoveable property or if the property had been purchased in execution of a decree. The order directing possession can only relate to such immoveable property, that is, immoveable property to which the decree relates or to immoveable property which had been purchased in execution of a decree. In the instant case admittedly what was purchased in execution was only half share in the property. The executing Court can order possession with respect to this half share only and not with respect to the remaining half share. The rights with regard to the remaining half share will have to be determined by proper legal proceedings. The question relating to such remaining half share cannot be considered in execution even if it is contended by the decree-holder or by the purchaser that the-remaining half share has been also purchased by him at private sale subsequent to the date of the decree or subsequent to the date of purchase in execution. The rights with respect to the purchase of property at a private sale cannot be the subject-matter of the execution proceedings. The learned Judge was therefore clearly wrong in exercising jurisdiction, which was not vested in him in regard to the property purchased at private sale.

3. It is, however, contended by the learned counsel for the opponent relying on Sarvi Begam v. Taj Begam, ILR 36 All 181 : (AIR 1914 All 511(1)), that a judgment-debtor cannot resist a warrant for possession. This principle can apply only if the warrant is restricted to the property referred to in Order 21, Rule 97, C. P. Code. In other words, if the warrant is for possession in respect of the property to which the decree for possession of immoveable property relates or if it is the property purchased in execution of a decree. If the warrant relates to the property purchased at private sale anybody can resist the giving of possession by a Court in execution proceedings relating to other property.

4. Lastly it is contended that an appeal lies to the District Court under Section 47 of the Code of Civil Procedure, and that therefore a revision application is not competent. Section 115, Civil Procedure Code reads as follows :

'The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears -

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.'

Revision under this section lies when a case has been decided by any Cout subordinate to a High Court and in which no appeal lies thereto. This view finds support in Niaz Ahmed v. Phuk Kunwar, ILR 54 All 428 : (AIR 1932 All 336) and Sashi Kanta v. Nasirabad Loan Office Co. Ltd. AIR 1936 Cal 786.

5. It is also contended that as there is an alternative remedy open, this Court should notexercise its revisional powers. But as observed in Lila v. Mahange, ILR 54 All 183 : (AIR 1931 All 632) (FB), it cannot be laid down as a general proposition that the High Court has no power to interfere in revision when another remedy is open. Each case must be considered on its own merits. With great respect, I agree with the following observations of the Allahabad High Court in the above case at p. 186 (of ILR All) : (at p. 634 of AIR) :

'Section 115 is no doubt discretionary and therefore it is open to the High Court to decline to interfere in particular cases. As a matter of practice it may be conceded that ordinarily the High Court would not interfere if another convenient remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. The remedy by way of a separate suit would involve a protracted litigation through several courts and is not always a convenient remedy when more effective and speedy remedy is available. There is no justification for restricting the power conferred upon the High Court under Section 115 by laying down that no revision should be entertained when a remedy by suit lies. Each case must be considered on its own merits and if the Court below has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interests of justice, there is no reason why we should drive the applicant to a more circuitous remedy by way of a separate suit.'

6. I, therefore, allow the revision applicationand reverse the order of the lower Court orderinga warrant for possession of the whole disputed property. No order as to costs.


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