Point of Law- Court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It is true that High Court normally exercises its revisional jurisdiction under Section 115, CPC but once it is held that the executing Court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore, we do not find any illegality in the order passed by the High Court in interfering with and setting aside the order directing payment of interes.

ORDER :

1. Rule. Mr. Ankit Shah, learned advocate waives service of notice for and on behalf of the respondent-GIDC.

2. The petitioners, who are the original plaintiffs before the learned Trial Court i.e. Regular Civil Suit No. 164 of 1985, have challenged the order passed below Exh.1 dated 30.01.2021, by the Executing Court in Regular Civil Execution No. 147 of 2010.

3. The shorts facts leading to the filing of present petition may be summarized as under:

3.1 The present petitioners had filed Regular Civil Suit No. 164 of 1985 before the learned Senior Civil Judge, Jamnagar with a prayer for declaration and permanent injunction inter-alia praying that the land being land loosers from the respondent-Corporation as per their application dated 18.04.1981, which was partly allowed and the petitioners were declared as “land loosers” and were granted the lands/shades as prayed for in their application from the defendants/respondent-Corporation on priority basis being land loosers. The judgment and decree was passed in favour of the plaintiffs in Regular Civil Suit No. 164 of 1985 dated 04.01.1988. The respondent-Corporation challenged the impugned judgment and decree passed on 04.01.1988 by preferring Regular Civil Appeal No. 124 of 1988, which was dismissed vide order dated 31.01.2003. The present petitioners preferred Regular Execution Application No. 147 of 2010 before the Executing Court. The Executing Court dismissed the application preferred by the present petitioners clarifying that as per the declarative pursis passed by the defendant-GIDC, the plaintiffs are at liberty to accept the land of plot to the tune of 50 sq. mtrs. as per policy, i.e. at the rate of Rs. 2,000/- per sq. mtrs. within 90 days of this order and may withdraw amount deposited in the Court. Hence, this petition is preferred by the petitioners under Articles 226 and 227 of the Constitution of India.

4. Heard learned advocates for the respective parties.

5. It is submitted by learned advocate for the petitioners that the Executing Court has exceeded its jurisdiction and has modified the decree dated 04.01.1998 passed in favour of the present petitioners which is not permissible under the law. It is further submitted that the Executing Court cannot go beyond the decree, which was passed and attained finality. That Regular Civil Appeal No. 124 of 1988 preferred by the respondents before the District Court, Jamnagar, challenging the said judgment and decree passed by the Senior Civil Court was dismissed by the Appellate Court. It is further submitted that the question as to validity of the decree cannot be decided by the Executing Court for modifying the decree. Referring Order 21 Rule 28 of the Civil Procedure Code, it is submitted that the Executing Court is bound to follow the decree passed by the Court of Appeal in relation to the execution of such decree. It is further submitted that as per the order which was passed in another petition which has no nexus with the case of the present petitioners as they were not party to that petition, there is no question of applicability of that order to the petitioners and however, by applying analogy of that order, the Executing Court has passed the order. Referring certain documents i.e. the application preferred by the petitioners for applying the open land/shed, instructions for filing the application, it is submitted that it was clearly shown in the application itself that the applicants have applied for allotting 10,000 sq. mtrs. of the land in their application. The Trial Court has also observed in the final order passed that the applicants are entitled to claim for the land as per their application preferred by them. In support of his arguments, learned advocate for the petitioners has relied upon the following judgments:

(i) S. Bhaskaran vs. Sebastian (Dead) by LRs. and Others in Civil Appeal No. 7800 of 2014, decided on 27.08.1996 by the Hon’ble Supreme Court.

(ii) Rameshwar Dass Gupta vs. State of Uttar Pradesh, 199