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Nasimbanu vs Present

High Court Of Gujarat|28 June, 2012
1.00. Present Civil Revision Application under section 115 of the Code of Civil Procedure has been preferred by the petitioner herein - widow of the original defendant No.1.6 to quash and set aside the impugned order dtd.27/4/2012 passed by the learned Executing Court below Ex.15 in Execution Petition No.910 of 2011, by which the learned Executing Court has rejected the application/objections raised by the petitioner against the order of Executing Court directing to issue Possession Warrant with respect to the suit property. It is required to be noted that as such the petitioner is widow of original defendant No.1.6, who has died after the order passed by the Hon'ble Supreme Court in Special Leave to Appeal (C) No.14203 of 2008. It is to be noted that the judgement and decree passed by the learned trial court in Civil Suit No.908 of 1985 has been confirmed upto the Hon'ble Supreme Court and even the original defendants requested to grant reasonable time to them to vacate the suit premises and the Hon'ble Supreme Court granted time upto 30/6/2011 to the original defendants to vacate the suit premises, on usual undertaking and despite the same, the original defendants - judgment debtors did not vacate the suit premises, it cannot be said that the learned Executing Court has committed an error and/or illegality in issuing Possession Warrant and rejecting the application Ex. 15 / objection raised by the petitioner.
2.00. It is required to be noted that as such it was the case on behalf of the petitioner that at the time when the Hon'ble Supreme Court dismissed the aforesaid Special Leave to Appeal, husband of the petitioner
- original defendant No.1.6 had expired which is factually incorrect. It is not in dispute that as such the husband of the petitioner has died after the dismissal of the Special Leave to Appeal by the Hon'ble Supreme Court.
3.00. Under the circumstances and considering the facts and circumstances of the case, no illegality has been committed by the learned Executing Court passing the impugned order and hence interference of this Court is not required in exercise of powers under section 115 of the Code of Civil Procedure.
4.00. It is also required to be noted at this stage that as such the suit for recovery of the possession has been filed by the original plaintiffs way back in the year 1985, still the original plaintiffs are not in a position to enjoy the fruits of the litigation even after a period of about 37 years and it appears that as a last attempt the petitioner submitted the application / objection at Ex.15 to obstruct the execution of the decree.
5.00. In view of the above and for the reasons stated above, there is no substance in the present Civil Revision Application, which requires to be dismissed and is accordingly dismissed.
SHAH, J.] rafik Top
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