Back
GUJARAT HIGH COURT
J.C. Doshi, J.
Dinbandhu Dinanath Prajapati – Petitioner
versus
Devenbhai Mafatlal Patel
and Anr. – Respondents
R/Special Civil Application No.23710 of 2022 with Civil Application (For Direction) No.1 of 2024 in R/Special Civil Application No.23710 of 2022
Decided on 1.7.2024
(A) Civil Procedure Code, 1908 – Section 151 – Inherent jurisdiction – Court has in many cases where circumstances so require acted upon assumption of possession of an inherent power to act ex debito justitiae, and to do real and substantial justice for administration for which alone it exists – If ordinary rules of procedure either resulted in injustice or lack of remedy in a procedure, they can be broken in order to achieve ends of justice – Section 151 of CPC does not confer any power, but only indicates that there is a power to make such order as may be necessary for achieving ends of justice and also to prevent abuse of process of court. (Paras 8, 9 and 12)
(B) Civil Procedure Code, 1908 – Section 151 read with Section 54 – Recall of decree – Right of a third party to a final decree to file such applications, by invoking inherent powers of Court under Section 151 of CPC – Recall application under Section 151 of CPC essentially filed for reopening of preliminary decree and send the party prior to stage of passing of preliminary decree – Respondent has asked relief of Declaration and permanent injunction – These remedy can be asked under provision of Specific Relief Act – By passing preliminary decree, court has settled dispute between party to suit – In present case, recall application is filed by person who is not party to suit – Recall application is moved with averments of fraud – There is no cavil that fraud vitiate all acts, technical provision would not come in way of court to set a naught relief obtained by fraud, when case of practising fraud upon court is settled or set – Inherent power may be exercised to undo result achieved by practising fraud upon court – But, if fraud is played upon party, they have to resort to provisions available under law to challenge same – They cannot invoke inherent power of court – Court is prevented from acting as an executing court for the purpose of execution of decree for partition – Court after drawing preliminary decree becomes functus officio in relation to decree for partition passed by it and all further proceedings for execution of such decree have to be carried out by concerned Revenue Officer. (Paras 17, 18 and 22)
(C) Civil Procedure Code, 1908 – Section 151 read with Section 54 – Recall of decree – Right of a third party to a final decree to file such applications, by invoking inherent powers of Court under Section 151 of CPC – Trial court has committed serious error not only in entertaining recall application; but passing status quo order staying its own preliminary decree from execution which is serious jurisdictional error committed by court below – Court having become functus officio cannot entertain any further application against preliminary decree and set the clock back prior to preliminary decree – Impugned order quashed and set aside. (Paras 25 and 29)
Result: Petition allowed.
JUDGMENT (CAV)
The instant petition under Article 227 of the Constitution of India is filed seeking following reliefs:
“(A) The Hon’ble Court may be pleased to quash and set aside 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.
(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:
2.1 That an agreement to sale dated 27.07.1979 was executed between the petitioner’s father Dinanath Poonamchand Prajapati and Samubhal Kanjibhai Patel whereby Samubhal Kanjibhai Patel agreed to sale land bearing survey No.497 admeasuring 6 Acres and 37 Gunthas and land bearing survey No.499 admeasuring 3 Acres and 00 Gunthas to the father of the petitioner. thereafter registered sale deed no. 1965 dated 31.03.1980 was executed by Samubhal Kanjibhal with respect to land bearing survey no. 497 admeasuring Acre 4.24 guntha with old survey no. 464 admeasuring Acre 10.00 guntha paiki Acre 6.37 guntha and survey no. 499 admeasuring Acre 3.00 gunthas in favour of Dinanath Poonamchand. However, it is stated in the sale deed that there is a mistake in the measurement of survey no. 497 and process is going on for correcting the same. Therefore, the seller allotted the full and actual possession of the land admeasuring Acre 6.37 gunthas of land bearing survey no. 497 to the father of the present petitioner. In view of the re-survey taking place in the year 1992-93, old survey no. 499 and 497 merged to form new survey no. 320.
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 application below Exh.
Recall of decree – Inherent power may be exercised to undo result achieved by practising fraud upon court – But, if fraud is played upon party, they have to resort to provisions available under law t....
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.
(1) Inherent Jurisdiction – In exercising powers under Section 151 of CPC, it cannot be said that civil courts can exercise substantive jurisdiction to unsettle already decided issues – Recalling a f....
The court clarified the rights of the parties in the subject property and directed the appointment of a Local Commissioner to effectuate the preliminary decree for partition, in line with the provisi....
The jurisdiction of civil courts is barred under Section 154(1)(e) of the Assam Land Revenue Regulation if the plaintiff is not in possession of the land and fails to meet the conditions for imperfec....
A preliminary decree in a partition suit which provides specific mechanisms for partition or sale in the event of impartibility is enforceable, and the court should proceed suo motu to finalize parti....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
