Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Guj) 2208

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.C. Doshi, J.
Dinbandhu Dinanath Prajapati - Appellant
Vs.
Devenbhai Mafatlal Patel and Ors. - Respondent
Special Civil Application No. 23710 of 2022 and Civil Application (For Direction) No. 1 of 2024 in Special Civil Application No. 23710 of 2022
Decided On: 01-07-2024

Advocates:
Advocate Appeared:
For the Appellant : Dipen Desai
For the Respondents: Shailesh R. Patel, Rainish S Sikligar and Viral K. Shah

The trial court lacks jurisdiction to entertain a recall application from a non-party after a preliminary decree for partition has been passed, as it becomes functus officio.

Headnote:(A) Constitution of India - Article 227 - Civil Procedure Code, 1908 - Section 151 and Order XX Rule 18 - Recall application - Jurisdiction of trial court to entertain recall application after passing of preliminary decree for partition - Court becomes functus officio after sending decree to Collector for partition - Trial court erred in granting status quo order and entertaining recall application by non-party - Petition allowed, impugned order quashed. (Paras 1, 19, 25, 29)

(B) Inherent Powers of Court - Section 151 of CPC - Not a substantive provision - Cannot be invoked to reopen settled matters or to grant relief to non-parties - Fraud must be proven to challenge decree. (Paras 8, 12, 28)

Facts of the case:
The petitioner challenged the trial court's order allowing a recall application filed by a non-party after a preliminary decree for partition was passed, claiming fraud was committed in the original suit. The trial court granted a status quo order, which the petitioner argued was beyond its jurisdiction.

Findings of Court:
The court found that the trial court had no jurisdiction to entertain the recall application as it had become functus officio after sending the decree to the Collector for execution. The court emphasized that the inherent powers under Section 151 of the CPC cannot be used to reopen settled matters or grant relief to non-parties.

Issues: Whether a non-party can file a recall application under Section 151 of the CPC after a preliminary decree has been passed?

Ratio Decidendi: The court ruled that the trial court erred in entertaining the recall application and granting a status quo order, as it had no jurisdiction to do so after the preliminary decree was sent to the Collector. The inherent powers of the court cannot be invoked to grant relief to non-parties or to reopen settled matters.

Result: Petition allowed; the impugned order is quashed.

JUDGMENT :

J.C. Doshi, J.

1. The instant petition under Article 227 of the Constitution of India is filed seeking following reliefs:

(B) Pending final hearing and disposal of this petition, the Hon'ble Court be pleased to stay the execution, operation and implementation of the impugned order dated 04.11.2022 passed in application below. Exh.5 in Civil Misc. Application No. 208 of 2022, annexed at Annexure-A to the petition."

2. Brief facts of the case are as under:

2.2. That Dinanath Poonamchand passed away on 07.04.2000. Mutation entry no. 2390 dated 03.05.2000 whereby the name of legal heirs of Dinanath Poonamchand namely; Pravinaben wd/o Dinanath Poonamchand, Dinbandhu Dinanath (petitioner herein) and Deepikaben Dimpleben Dinanath was entered. Pravinaben wd/o Dinanath Poonamchand passed away on 22.04.2011. It is required to be stated that before she passed away, Pravinaben executed a registered will dated 31.08.2010, whereby she bequeathed her share in favour of the petitioner

2.3. That the respondent No. 2 herein i.e. the sister of the petitioner challenged the aforesaid Will by way of Regular Civil Suit No. 210 of 2012 before the Additional Senior Civil Judge, Surat and also sought partition of the suit property. That in the meantime, Legal Heirs of Lakhiben wd/o Gandabhal Devabhal executed a registered sale deed dated 05.05.2017 in favour of respondent no.1 Devanbhai Mafatial Patel allegedly with respect to some portion of survey no. 320.

2.4. In the meantime, Regular Civil Suit No. 210 of 2012 came to be finally heard and vide judgment and order dated 29.04.2022, after hearing both the parties, learned 19th Additional Senior Civil Judge, Surat was pleased to partly allow the suit and was pleased to pass the preliminary decree holding that the respondent No. 2- Dipikaben is entitled to 1/3rd share and necessary effect of the order of the trial Court is to be given effect and 1/3rd share is required to be earmarked and separated and possession of the said 1/3rd share is given to the respondent No. 2-Dipikaben. It was also directed that for the implementation of the preliminary decree and copy of the order be sent to the Collector as per Section 54 of the Act read with Order XX Rule 18 of the Code of Civil Procedure and the Collector shall depute authorized officer for implementation of the preliminary decree. Accordingly, preliminary decree was drawn for its implementation.

2.5. Respondent No. 1 preferred an application for recall of the judgment and order dated 29.04.2022 passed in Regular Civil Suit No. 210 of 2012 being Civil Misc. Application No. 208 of 2022. The respondent No. 1 herein also filed appl