ORDER :

1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 18.06.2022 passed by the learned 5th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Gandhidham-Kutch, in Execution Petition No. 74 of 2018 as well as the order dated 09.05.2018 passed by the learned 3rd Additional Senior Civil Judge, Gandhidham-Kutch, in Special Civil Suit No. 26 of 2015.

2. The brief facts leading to the filing of present petition reads thus:

2.1 The daughter of the petitioner i.e. Aakansha was having heart ailment and was required to be operated however, because of financial condition of the petitioner, it was not possible for the petitioner to meet with the said expenses which was approximately Rs. 10,00,000/-. The petitioner thought it fit to get his daughter operated and to collect the amount from his nearby friends and relatives. As the petitioner could not collect the required amount, the petitioner approached the respondent herein and requested for some help. The respondent herein asked for some security towards the said amount given to the petitioner and pursuant thereto, the petitioner executed one agreement to sale for his property being Tenament Unit No. ‘B’ Plot No. 47, Ward 9/A(F), Shree Odhavram Bhanushali (Gandhidham) Owner’s Association situated at Gandhidham, Taluka and District: Gandhidham, on 27.01.2014 with a clear understanding that the said document is executed towards the security and as soon as the petitioner would repay the amount, the same would stand cancelled.

2.2 That, the respondent herein submitted an application before the President of the Society, for which an agreement to sale was executed and requested to enter her name in the record by saying that the original documents are missing and a public notice was published in the local news paper. It was stated that the amount borrowed by the petitioner herein from the respondent was repaid however, despite the aforesaid fact, taking advantage of the execution of the agreement in favour of the respondent herein, the respondent filed Special Civil Suit No. 26 of 2015 before the learned Senior Civil Judge, Gandhidham, for specific performance for the suit property. It is further stated that in the cause title of the plaint, no specific address of the petitioner has been given and only ‘Ahmedabad’ is stated. That, the notice was issued by the concerned Court, the same was served upon the petitioner at the address of suit property by affixing, as a result of which, the petitioner was not aware about the proceedings of the plaint and the suit proceeded ex-parte. It is stated that without properly appreciating the facts of the case, the 3rd Additional Senior Civil Judge, Gandhidham-Kutch by order dated 09.05.2018, allowed the plaint. The said order is duly produced at Annexure-B to the petition, which is also a subject matter of challenge in the present petition.

2.3 The respondent herein, after the said order dated 09.05.2018 came to be passed in the Special Civil Suit No. 26 of 2015, filed the Execution Petition No. 74 of 2018 before the learned Senior Civil Judge, Gandhidham-Kutch. In the said petition also, the complete address of the petitioner herein was not stated. Notice came to be issued to the petitioner which came to be served to the petitioner and in pursuance to the service of the said notice, the petitioner appeared before the Court below and filed a detailed reply. The petitioner pointed out in the said reply that the amount, which was borrowed by the petitioner, was already repaid to the respondent herein. It is also stated that the concerned Court proceeded ex-parte behind the back of the petitioner. The said reply is duly produced at Annexure-C to the petition. It is the case of the petitioner that the respondent has committed fraud to the petitioner. The petitioner submitted complaint to the Superintendent of Police, Kutch as well as Gandhidham ‘A’ Division Pol