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Natubhai Jethabhai Chavda & 7 vs Bachubhai Bhurabhai Pipaliya &

High Court Of Gujarat|04 May, 2016
1. Applicants pray for condonation of delay of 766 days caused in filing the Misc. Civil Application for review.
2. Learned advocate Mr. Nilesh Pandya has opened the arguments addressing the Court on merits for which review is sought. It needs to be refereed to.
3. Learned advocate Mr. Pandya has pointed out that execution proceeding is going on and present applicants apprehend enforcement of decree and as consequence demolition of applicants' and other's houses. On merits three points were submitted. One, Page 1 of 3 HC-NIC Page 1 of 3 Created On Fri May 06 03:08:47 IST 2016 C/CA/4251/2016 ORDER original plaintiff has already sold the land in 2007, and therefore, the plaintiff had no interest or cause to proceed with the execution proceeding that has proceeded after 2007. That said sale deed came to the knowledge of the present applicants recently. Secondly, it was submitted that this Court has seriously erred in considering Rule 101 of Order 21 of C.P.C., and hence, review is required. In this regard attention was drawn to Para 13 of the order. Lastly, it was submitted that in Para 13, this Court has also observed that R.C.S No. 198 of 1999 is filed by the present applicants, while in fact the suit is filed by the third party and not by the present applicants.
4. This Court was not impressed by any of the above grounds, advanced by the learned advocate for the applicants. As to the change in ownership in 2007 - as alleged - strictly speaking, it does not affect much to the applicants. Similarly, initiation of suit proceeding i.e. R.C.S No. 198 of 1999 has not mainly weighed with this Court in passing the earlier order. It is just additional fact referred to. As to the submission on scope of Rule 101 of C.P.C., scope and meaning of Rule 101 cannot be considered in abstract, but it is to be considered with reference to the facts of the case on hand.
5. On being asked by the Court how the applicants came into the picture, learned advocate has drawn attention to some receipts purported to have been issued by Gautam Park Society. The applicants claim to be members of said society. Learned advocate was not Page 2 of 3 HC-NIC Page 2 of 3 Created On Fri May 06 03:08:47 IST 2016 C/CA/4251/2016 ORDER able to answer to the query how the Gautam Park Society came into picture.
6. In the course of above submissions, learned advocate for the applicants has expressed apprehension submitting that applicants apprehend imminent adverse order from the Executing Court, and hence, grant of interim relief is necessary.
7. It was pointed out that if the applicants need immediate relief, the applicants may explore other available remedy. It was submitted that the applicants would be satisfied if notice is issued in the delay condonation application. Learned advocate prayed for issuance of notice.
8. In view of above, Notice, returnable on 8th June, 2016.
Direct service is permitted.
(R.D.KOTHARI, J.) On reading the order, before it is signed, after dictating it in open Court, it appears necessary to recall the order.
The matter be notified on top of the Board on 6th May, 2016.
(R.D.KOTHARI, J.) BD Songara Page 3 of 3 HC-NIC Page 3 of 3 Created On Fri May 06 03:08:47 IST 2016
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