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2025 Supreme(Guj) 2164
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sanjeev J. Thaker, J.
Shardaben D/O. Mohanji Motiji Suthar & Ors. – Applicants
Versus
Ilaben Manharlal Shah & Anr. – Opponents
R/Civil Revision Application No. 144 of 2024
Decided On : 04-03-2025
For the Applicant : Mr. Janak D Vardey
For the Opponent : Mr. Manish S Shah
An order passed by an executing court adjudicating claims or objections to the attachment of property sits on the same footing as a decree and is appealable. As the law bars revision where an appeal lies, a revision application against such an order is not maintainable.
Headnote:(A) Code of Civil Procedure, 1908 - Order 21 Rule 58 - Adjudication of claims to or objections to attachment of property - An order passed under this rule has the force of a decree and is subject to appeal - The intent of the legislature, supported by report recommendations, is to have all questions of title settled in execution proceedings to avoid protraction of litigation. (Paras 7-9)
(B) Code of Civil Procedure, 1908 - Section 115(2) - Scope of revision jurisdiction - Where an order is appealable, the power of revision is barred - An executing court's order on a claim or objection is appealable, rendering a revision application against such order non-maintainable. (Paras 10-13)
Facts of the case:
Following a money decree in a civil suit, the decree-holder initiated execution proceedings resulting in the attachment of a property. Third parties, claiming an interest in the property through a separate pending partition suit, filed an application for a stay of the execution proceedings. The executing court rejected this application. The aggrieved parties challenged the rejection order through a Civil Revision Application.
Findings of Court:
The court observed that the objections filed for the release of attachment had already been adjudicated upon under the relevant procedural rule. Because such an order holds the status of a decree, the aggrieved party is entitled to prefer an appeal. Consequently, the court held that the revision application was incompetent due to the statutory bar where an appeal lies against the impugned order.
Issues: The primary issue was whether a revision application is maintainable against an order passed by an executing court regarding objections to the attachment of property, particularly when the objector also has a separate suit pending for partition.
Ratio Decidendi: An order adjudicating a claim or objection to the attachment of property is treated as a decree under the civil procedural code. Since a specific remedy by way of appeal is provided, the High Court is statutorily precluded from exercising its revision jurisdiction under Section 115(2) to vary or reverse such an order.
Result: Revision application dismissed.
| Table of Content |
|---|
| 1. procedural history and factual background regarding execution proceedings and subsequent civil suit. (Para 1 , 2 , 3) |
| 2. parties' contentions regarding the stay of execution proceedings pending a separate civil suit. (Para 4 , 5 , 6) |
| 3. adjudications under order 21 rule 58 are appealable as decrees, barring revision under section 115 cpc. (Para 7 , 8 , 9 , 10 , 11) |
| 4. revision applications are not maintainable when the remedy of appeal exists against an order. (Para 12 , 13) |
| 5. dismissal of the civil revision application and vacation of interim relief. (Para 14) |
JUDGMENT :
Sanjeev J. Thaker, J.
1. The present Revision Application has been filed to quash and set aside the order dated 19.03.2024 passed in application under Exhibit-28 in Execution Application No.3 of 2015 by 2nd Additional Senior Civil Judge, Deesa.
2. Facts leading to the present application are that the original plaintiff filed Special Civil Suit No.86 of 2013 for a decree of Rs.29,00,000/- with interest at the rate of 18% per annum and perpetual injunction the trial Court passed the following order:-
order
“The suit is hereby partly allowed.
The defendant is hereby ordered to pay Rs.29,00,000/- (Twenty nine lacs) (amount of cheques) to the plaintiff within three months from this order, with simple interest @ 6% p.a. from the date of the institution of the suit i.e. from 30.12.2013 to till its realization. If defendant fails to do so, the plaintiff is entitled to recover it from the assets of the defendant, after adopting due process of law.
Decree be drawn accordingly.
Pronounced in open court on today, 1st May, 2015.”
3. After the judgment and decree were passed by the trial Court, the plaintiff filed Special Execution Petition No.3 of 2015 and on 22.02.2018 an order came to be passed under Order 21 Rule 54 directing an attachment to the property being revenue Survey No.225 admeasuring 1- 12-73 sq. mtr. land located in village-Mahdeviya, Taluka- Deesa, account No.219, and thereafter, after the procedure as contemplated under Order 21 Rule 54(2), the sisters and brothers of defendant No.2 herein filed suit bearing Regular Civil Suit No.11 of 2023 seeking partition in the property in question and on the basis of the said suit, an adjournment was sought in the Execution proceedings. The objections that were filed vide Exhibit-19 were rejected by the Executing Court by order passed on 17.07.2023 and the said order have not been challenged by the applicant. It is submitted that thereafter as a separate suit has been filed by the applicants, the applicant filed an application vide Exhibit-28 on the ground that in view of the fact that Civil Suit No.11 of 2023 is filed, the execution proceedings be stayed till the disposal of the said suit and the said application was rejected by an order dated 19.03.2024 and the present Civil Revision Application is filed to challenge the said order.
4. Learned advocate for the plaintiff has argued that in view of Order 21 Rule 58 filed as the said suit is pending and as per the provisions of Order 21 Rule 59 there has to be stay of sale as the proceedings with respect to the suit property are already pending and till the time the trial Court adjudicates all the issues that are raised in Regular Civil Suit No.11 of 2023. The execution proceedings cannot proceed and the same are required to be stayed.
5. Learned advocate for the plaintiff has relied on the provisions of Order 21 Rule 58(5) and it has been argued that the execution proceedings are subject to the result of the suit and unless and until the said suit is decided, the proceedings of execution cannot be considered conclusive, and therefore, it has been argued that the trial Court has wrongly decided the said application in view of the pendency of the Regular Civil Suit No.11 of 2023, proceedings were required to be stayed.
6. Per contra, learned advocate for the defendant has argued that in view of the fact that the trial Court has already adjudicated the dispute and it
