NANJIBHAI HARKHUBHAI Vs. VAGHARI MAFATBHAI LALLUBHAI DECEASED

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging the order passed below exhibits 21, 27 and 23, dtd. 29/9/2009, in Regular Execution Application No.7 of 2003 by the Principal Civil Judge, Patan, which is confirmed in Civil Misc. Appeal No.0/2019 before the District Court, Patan vide order dtd. 9/11/2009 holding that order dtd. 29/9/2009 is not appealable at all and therefore, the District Judge, Patan held that since the appeal is not legally maintainable, Registry of that Court was directed to handover the case papers to the appellants.

(2.) Both these orders are under challenge in this petition.

(3.) Mr. P.M.Bhatt, learned advocate for the petitioners submitted that their father was one of the plaintiffs in a Civil Suit No.27 of 1976 and he alone filed execution of a judgment and decree rendered therein. In absence of other judgment creditor joining in execution proceedings vide order dtd. 17/1/2004, learned Executing Court directed the decree holder to deliver the re-conveyance deed on proper stamp and Court Commissioner was appointed to execute the documents on deposit of the amount towards the remuneration of Court commissioner and possession of suit land was ordered to be delivered to the Darkhastdar under Order XXI Rule 35 of the C.P.C. Therefore, he has submitted that unless that order is challenged, it has become final and therefore, the executing Court could not have passed order impugned dtd. 29/9/2009. He has further submitted that since other co-plaintiffs in the original suit had not applied for execution of a decree and not challenged the order dtd. 17/1/2004, whereby in an execution filed by the father of the petitioners alone, a re-conveyance deed was to be executed, other joint decree holders have no right without challenging the same and getting it set aside from the appellate Court to be joined and therefore, impugned order passed by the executing Court is erroneous.