KOLI KANJIBHAI RAMSHIBHAI RATHOD Vs. KOLI BAVBHAI NATHUBHAI

JUDGEMENT

(1.) The present writ application is filed under Article 227 of the Constitution of India by writ applicants being successor of original plaintiffs seeking the following reliefs :

(2.) The short facts of the case appear to be are that the predecessors of present writ applicants had filed partition suit being Regular Civil Suit No. 65 of 1967 before Principal Civil Judge, Rajula which came to be allowed on 31/7/1968, thereby a preliminary decree was passed. The appeal filed by predecessors of respondents who happens to be defendants of said suit came to be dismissed on 30/6/1969. The Second Appeal also came to be dismissed being abated by this court vide its judgment dtd. 4/12/1973. So, writ applicants are legal heirs of original plaintiffs, whereas respondents are legal heirs of defendants of the suit.

(3.) Learned Counsel Mr. P.J.Kanabar appearing for the petitioners/original plaintiffs would submit that trial court has committed jurisdictional error by not allowing the impugned application filed by the petitioners, thereby committed serious error of law. Learned counsel Mr. Kanabar would further submit that the petitioners are the decree holders, who are deprived from the fruits of the decree and due to technical reasons, they are unable to enjoy the fruits of the decree which has been passed way back in the year 1968. Learned counsel Mr. Kanabar would further submit that the trial court has wrongly observed that the final decree was passed on 30/12/1978, thereby erroneously rejected execution application having considered it as time barred. Learned counsel Mr. Kananbar would submit that as such no final decree was passed on 30/12/1978 in regards to the agricultural lands-in-question, as nothing has been done by the Collector despite civil court has sent the decree for its implementation.