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2024 Supreme(Guj) 731
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sandeep N. Bhatt, J.
Parindbhai Dhirubhai Dobariya & Anr. – Applicants
Versus
Ashwinbhai Jayantilal Doshi & Anr. – Opponents
R/Misc. Civil Application (For Transfer) No. 1923 of 2023
Decided On : 19-04-2024
Advocate Appeared:
For the Applicant : Mr Pratik Y Jasani
For the Opponent : Jenil M Shah
IMPORTANT POINT
The nature of the proceedings and justifiability are crucial factors in determining whether to exercise powers under Section 24 of the C.P.C. for the transfer of suits or proceedings.
Headnote:
Transfer - Civil Execution Petition - Section 24 of the Code of Civil Procedure, 1908 - The court discussed the provisions of Section 24 of the C.P.C. and concluded that the nature of the execution proceeding and the nature of the civil suit are substantially different. The court found no justifiable reason to transfer the suit and dismissed the application as a dilatory tactic.
Fact of the Case:
The applicants sought to transfer a civil execution petition pending before the Small Causes Court to the Court of the Principal Senior Civil Judge, where a special civil suit arising out of the same subject property was pending. The applicants argued that the subject matter of both proceedings was the same and transferring the execution proceedings would prevent conflicting orders and prejudice to the parties' rights.
Finding of the Court:
The court found that the nature of the execution proceeding and the nature of the civil suit were substantially different. It concluded that the application to transfer the suit was a dilatory tactic and found no justifiable reason to exercise powers under Section 24 of the C.P.C. for the transfer.
Issues: The main issue was whether the court should exercise powers under Section 24 of the C.P.C. to transfer the execution proceedings to the court where the special civil suit was pending.
Ratio Decidendi: The court's decision was based on the interpretation of Section 24 of the C.P.C., which allows for the transfer of suits, appeals, or other proceedings. The court considered the nature of the proceedings and found no justifiable reason to transfer the suit, ultimately dismissing the application.
Final Decision: The court dismissed the application to transfer the civil execution petition with no order as to costs.
ORDER :
1. By way of the present application, the applicants seek to transfer the Civil Execution Petition No.08 of 2014 pending before the learned Small Causes Court, Rajkot to the Court of learned Principal Senior Civil Judge, Rajkot, where the Special Civil Suit No.54 of 2022 arising out of the same subject property is pending for adjudication.
2. Brief facts of the present case are as under:
2.1 The issue involves in the present application pertains to a godown admeasuring about 1050 Sq. Yard forming part of Plot No. 17 situated at Survey No. 387/388 Paiki at Gondal, Rajkot (hereinafter to be referred as the property in question).
2.2 The property in question was belonging to late father of the Opponent No. 1, who had executed an agreement to sale dated 05.04.1990 in favor of the father of the Applicant No. 1. It was agreed between them that the said consideration of the property will be Rs. 5,25,000 out of which an amount of Rs. 4,25,000 has been paid by the father of the Applicant No. 1 by dual mode i.e. cash as well as cheque. The father of the Applicant No.1 on various occasions reminded the father of the Opponent No. 1 to execute sale deed further, father of the Opponent No. 1 kept promises, but did not execute the sale deed. The father of Applicant No.1 on 08.04.1990, 14.05.1990 and 20.02.1991 written letters to the father of the Opponent No.1 requesting to execute the sale deed.
2.3 The father of the Opponent No.1 on 15.05.1990 written a letter to the father of the Applicant No.1, handing over the possession of the godown and to use the same till formalities for getting property release from Urban Land Ceiling (ULC). It was promised that once property is released from ULC, sale deed will be executed. The father of the Applicant No.1 wanted to make use of godown for the purpose of storage of gas cylinder and the gas company wanted to proof of retaining property and therefore, as agreement for rent, for that limited purpose, was executed on 10.04.1991. Unfortunately, before father of the Opponent No.1 could execute the sale deed, he passed away on 19.09.1996. The Opponent No.1 by fabricating will of his father i.e. will dated 07.04.1996, filed proceedings for getting letter of administration being Civil Misc. Application No. 400 of 1999 wherein, it was suppressed that the godown had already been sold to the father of the Applicant No.1.
2.4 The Opponents filed a frivolous suit against the father of the Applicant No. 1 being Regular Civil Suit No.76 of 2000 seeking decree of eviction and the said suit came to be allowed on 19.07.2014. Being aggrieved, the said decree was challenged by the father of the Applicant No.1 by way of preferring a Regular Civil Appeal No. 66 of 2014 in between, the father of Applicant No. 1 passed away and the said proceedings were persuade further by the applicants. The said appeal came to be dismissed on 20.05.2019 and thereafter, the applicants preferred Civil Revision Application No. 309 of 2019 before this Hon'ble Court further, the said revision application also came to be rejected and the applicants preferred a petition before the Hon'ble Supreme Court of India being S.L.P. (Civil) No. 8819 of 2022, which also stood dismissed.
2.5 On 12.07.2022, the applicants filed a suit against the opponents being Special Civil Suit No. 54 of 2022 seeking decree of specific performance against the opponents pursuant to agreement to sale, referred to hereinabove, executed between the late father of Applicant No. 1 with the late father of Opponent No. 1. The said suit was filed and the opponents are found to be making attempts for transferring the godwon to a third party. That in the said suit, opponents are being represented, who have filed their reply to the injunction application as well as to the suit. The applicants have also preferred an application under Order 22 Rule 5 as well as an application under Section 340 of Criminal Procedure Code taking action against the opponents. The applicants have also f
