PASHCHIM GUJARAT VIJ COMPANY LIMITED vs HARISHBHAI JETHALAL MALAM PARTNER OF M/S. HARIRAM ICE FACTORY
- Court
- Gujarat High Court
C/SCA/12351/2026 (GJHC240373032026) JUDGMENT DATED: 03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12351 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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PASHCHIM GUJARAT VIJ COMPANY LIMITED
Versus
HARISHBHAI JETHALAL MALAM PARTNER OF M/S. HARIRAM ICE
FACTORY & ANR.
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/09/2026
JUDGMENT
1. Heard Ms. Lilu K. Bhaya, learned advocate for the
petitioner.
2. This petition is filed under Article 227 of Constitution of
India seeking following reliefs:
“(A) To allow this petition.
(B) To issue a writ of certiorari or a writ in the nature of certiorari or
any other appropriate writ, order or direction quashing and setting
aside the judgment and order dated 1.7.2025 passed by the Learned
Principal Senior Civil Judge, Porbandar below Ex.23 in Sp. Civil
Execution Application No.11/2017 and further be pleased to remand
the matter.
(C) To stay, the execution, implementation and operation of the order
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dated 1.7.2025 passed by the Learned Principal Senior Civil Judge,
Porbandar below Ex.23 in Sp. Civil Execution Application No.11/2017,
pending admission, hearing and final disposal of this petition.
(D) To grant ad-interim relief in terms of Para-15 (C) hereinabove.
(E) To award the cost of this petition.
(F) To grant such other and further relief as may be deemed fit by this
Hon'ble Court in the interest of justice.”
3. At the outset, Ms. Bhaya, learned advocate for the
petitioner, would candidly submit that second execution
petition in question was filed beyond period of 12 years from
date of passing of the decree. Nonetheless, Ms. Bhaya, learned
advocate, would submit that there was no intentional lapse on
the part of the petitioner to file the second execution petition
after 12 years. It is submitted that the respondent had
committed theft of electricity and due to such reason, the
Special Civil Suit No.34 of 2002 came to be filed by petitioner
against respondent, which was decreed by trial Court on
22.02.2005 and thereafter, at first in point of time, the
Execution Petition No.58 of 2006 was filed, but same was
dismissed by Executing Court vide its order dated 12.08.2012,
on the ground that service of execution was not affected upon
respondent. Thus, after getting fresh address and details of the
respondent, the execution petition in question being Special
Execution Petition No.11 of 2017 came to be filed on
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24.10.2017 and the same was dismissed on the ground that it
is filed after period of limitation.
3.1 Ms. Bhaya, learned advocate, would submit that
Executing Court ought to have taken note of the aforesaid
facts and circumstances and reason of delay in filing the
second execution petition, otherwise the respondent was
facing money decree and having committed theft of electricity,
the Executing Court ought to have condoned the delay in filing
the execution petition, thereby the execution petition could
have been decided on merits.
3.2 Ms. Bhaya, learned advocate, would further submit that
this Court should exercise its extraordinary power under
Articles 226 and 227 of Constitution of India and condone the
delay, if any, in filing the execution petition. It is further
submitted that as such there was no delay in filing the second
execution petition inasmuch as it was in continuation of the
earlier execution petition.
3.3 In view of the above submissions, Ms. Bhaya, learned
advocate, would request this Court to allow this petition.
4. No other and further submissions have been made by
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learned advocate for the petitioner.
5. Having heard Ms. Bhaya, learned advocate for the
petitioner, at length and upon perusal of the impugned
application and order passed thereon, prima facie , it appears
that the petitioner herein is a decree holder and the
respondent is a judgment debtor. The petitioner appears to
had filed Special Civil Suit No.34 of 2002 before the trial Court
against the respondent seeking recovery of the amount for the
theft of electricity. It further appears that vide its judgment
and decree dated 22.02.2005, the trial Court decreed the suit
in favour of the petitioner.
5.1 Thereafter, an execution petition being Execution Petition
No.58 of 2006 came to be filed by petitioner on 19.07.2006
and said execution petition came to be dismissed by Executing
Court on 12.08.2012, on the ground that petitioner could not
serve the notice of execution petition upon respondent -
judgment debtor.
5.2 The second execution petition in question being Special
Execution Petition No.11 of 2017 came to be filed on
24.10.2017. The judgment debtor appears to have filed
impugned application below Exhibit-23, wherein it was
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contended that aforesaid execution petition, filed in the year
2017, is time-barred as it was filed beyond 12 years from
passing of the decree. After hearing the parties, the Executing
Court vide impugned order dated 01.07.2025 has allowed the
impugned application, whereby it has dismissed the aforesaid
execution petition, as it was time-barred.
5.3 The aforesaid facts are not in dispute, inasmuch as the
Special Execution Petition No.11 of 2017 was undisputedly filed
on 24.10.2017 to execute the decree which was passed on
22.02.2005. The period of limitation prescribed under Article
136 of Limitation Act, 1963 (hereinafter referred to as “Act,
1963”), to execute such type of decree is 12 years from
passing of the decree. Thus, considering the aforesaid two
dates, one can safely say that this Execution Petition No.11 of
2017 inn question was filed after period of limitation. Even
Section 5 of the Act, 1963, would not be applicable to Order 21
of the Code of Civil Procedure, 1908 (CPC) under which the
execution petition in question was instituted.
6. In light of the aforesaid factual scenario and provisions of
law, this Court cannot accept any of the submissions
canvassed by Ms. Bhaya, learned advocate for the petitioner,
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but to confirm the impugned order passed by Executing Court.
7. According to my view, the second execution petition, i.e.
Special Execution Petition No.11 of 2017 cannot be considered
as a continuous process of earlier execution petition, as the
earlier execution petition was already dismissed for non-
service of notice upon the respondent – the judgment debtor.
7.1. Since the execution petition in question was instituted
beyond period of 12 years and Section 5 of Act, 1963, would
not come to the rescue of petitioner, there is no illegality
committed by Executing Court while dismissing the execution
petition in question, as it was hopelessly time-barred.
8. This Court is not having power under Article 226 of
Constitution of India to interfere with the order passed by trial
Court/Executing Court, as it is settled position of law that any
order passed by the Civil Court is subject to challenge only
under Article 227 of the Constitution of India.
9. Apart from the aforesaid, once the period of limitation is
prescribed under the Act, 1963, to file execution petition and
Section 5 of Act, 1963, is not applicable to execution
proceeding, this Court cannot condone the delay in filing the
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execution petition. It is settled position of law that if something
cannot be done directly, cannot be done indirectly.
10. In view of the foregoing discussions and reasons, I do not
find any merit in this petition, accordingly, it is hereby
dismissed in limine . No order as to costs.
(MAULIK J.SHELAT,J)
DEEPAK GEHLOT
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