KANUBHAI GOPALBHAI PATEL Vs. GANGAPRASAD GURU PURNANAD BRAMACHARI

JUDGEMENT

(1.) THE applicant, third party, has filed this Misc. Civil Application seeking leave of this Court and praying to call for the records and proceedings of the case and after perusing the legality and propriety of the orders passed in Special Civil Suit No.249 of 2004 dated 28.10.2005, to grant the applicant permission to prefer First Appeal under Section -96 of the Civil Procedure Code, challenging the consent decree passed in Special Civil Suit No.249 of 2004 and to allow the applicant to file First Appeal on merits by taking into consideration the facts stated in the said Special Civil Suit.

(2.) RULE was issued by this Court on 22.12.2006. Thereafter, on 2.2.2007 this Court has passed further order and observed that one of the opponents had refused to accept service and another one has shifted his residence and further observed that requisite advertisement shall be published in 'Gujarat Mitra', which is being published from Surat. The advertisement was ordered to be published on or before 12th February, 2007 and Misc. Civil Application No.3247 of 2006 in First Appeal (Stamp) No.5650 of 2006 was ordered to be notified for final hearing on 9th March, 2007. Pursuant to the said order, advertisement was published and hence the application was deemed to have been served on both the opponents.

(3.) MR .R.N.Shah, learned advocate appearing for the applicant has submitted that one Gangaprasad Guru Purnanand Bramchari is owner of the land in question bearing Revenue Survey No.736 admeasuring 2 Acres 7 Gunthas situate at Village Dumas, Dist. Surat. That he executed a Banakhat and irrevocable Power of Attorney in favour of Nikhilesh Nihalani and also executed a Banakhat and thereafter public notice was issued in the newspaper by the present applicant on 10.10.2003 and as nobody objected, he got the sale deed executed in his favour by the Power of Attorney Holder Nikhilesh Nihalani for Gangaprasad Guru Purnanand Bramchari. The said deed was executed on 5.3.2004 and it was also registered on the same date. Inspite of the said facts, the opponent No.1 Gangaprasad Guru Purnanand Bramchari has filed a Special Civil Suit No.288 of 2004 for declaration and for canceling and setting aside the sale deed duly executed in favour of Kanubhai Gopalbhai Patel. The applicant filed reply in the said Special Civil Suit and thereafter in entry proceeding before the Collector, he came to know that not only the opponent No.1 has executed such deed in favour of the applicant, but also it was alleged that he has also executed such Banakhat in favour of Hareshbhai Bavabhai Gadadhara which is ex -facie, bogus and frivolous transaction and the said alleged Banakhat was dated 1.2.2003 and thereafter the said Hareshbhai has filed a Special Civil Suit No.249 of 2004 on 28.10.2004 for specific performance of the agreement to sell and ultimately he obtained the consent decree by committing a fraud upon the Court and not declaring the earlier sale deed duly executed in favour of the applicant. The opponent No.2 has thereafter filed a Special Darkhast No.3 of 2006 for execution and got the deed executed through the Commissioner on 6.6.2006. As the said dispute was raised before the Asst. Collector in the entry proceedings, the applicant came to know on 6.10.2006 about this consent decree being passed in Special Civil Suit No.249 of 2005 on 28.10.2005. He immediately applied for the certified copy and having obtained the said certified copy, he was advised that if the applicant wants to file appeal challenging the aforesaid consent decree passed in Special Civil Suit No.249 of 2004 dated 28.10.2005, it is necessary to seek permission of this Court by making application under Section -96 for filing appeal before this Court as the applicant was not party in the aforesaid Special Civil Suit No.249 of 2004. Accordingly, the applicant has filed present Appeal. Mr.Shah has, therefore, requested to grant leave to file appeal. In support of his submissions he relied on the decision of this Court in the case of Jayantilal Hansraj Shah and others Vs. Hemakuwarben Dolatraj Dave and others, reported in 1996(1) G.L.H 893, wherein this Court has observed that a person who is not a party to the action may be allowed to appeal if he is adversely affected by the order provided the appellate Court thinks fit in its discretion to grant such leave.