NILESHKUMAR NIHALCHAND THAKKAR vs HIRENBHAI JASHBHAI GANDHI

Court
Gujarat High Court

C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10218 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
✓
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NILESHKUMAR NIHALCHAND THAKKAR & ORS.
Versus
HIRENBHAI JASHBHAI GANDHI & ORS.
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Appearance:
ADVOCATE NOTICE SERVED for the Petitioner(s) No. 2,3,4
M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No. 1
HARI K BRAHMBHATT(9070) for the Respondent(s) No. 2,3,4
MR .B A PATEL(5281) for the Respondent(s) No. 1
MR JAGDISH K RAMANI(6433) for the Respondent(s) No. 2,3,4
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 14/10/2026

JUDGMENT
1. Heard Mr. Pratik Khubchandani, learned advocate for M/s. Vyas
Associates, learned advocate for the petitioners, and Mr. Hari K.
Brahmbhatt, learned advocate for respondent Nos. 2 to 4. None present
for respondent No.1.
2. Rule returnable forthwith. Mr. Brahmbhatt, learned advocate
waives service of notice of Rule for and on behalf of the respondent Nos.
2 to 4.
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
3. This Court, vide order dated 07.10.2026, passed the following
order:
“1. When the matter was called out, Mr.Pratik Khubchandani,
learned advocate for the petitioners and Mr.Hari Brahmbhatt,
learned advocate for respondent Nos.2 to 4 are present.
Mr.B.A.Patel, learned advocate for respondent No.1 is absent.
2. This matter is listed in a separate board wherein the
execution/trial Court proceeding is stayed.
3. To give one last opportunity to respondent No.1 to respond to this
petition, stand over to 14.10.2026.
4. It is made clear that this Court will not further accommodate
learned advocate for respondent No.1 and irrespective of his leave-
note or sick-note, this Court will decide the matter on merits.”
4. Since an opportunity was given to respondent No.1 to appear and
contest this petition, none appeared for respondent No.1.
5. This petition is filed under Article 227 of the Constitution of India
seeking the following reliefs:-
“A. The Hon’ble Court may be pleased to issue writ or certiorari
and / or any other appropriate writ, direction and order to quash
and set aside order dated 02.07.2021 passed by the learned
Principal Senior Judge, Vadodara in Special Execution Petition No.
14 of 2020;
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
B. Pending hearing and final disposal of the petition, Your
Lordships be pleased to stay the implementation, execution and
operation of the order dated 02.07.2021 passed in Special
Execution Petition No. 14 of 2020 passed by the learned Principal
Senior Civil Judge, Vadodara;
C. To pass such other and further order/s necessary in the interest
of justice.”
6. At the outset, Mr. Pratik Khubchandani, learned advocate, under
instructions of his client, would state and inform this Court that the
Execution Petition filed by the petitioners herein is only against
respondent No.1 herein, and the rest of the respondents are joined as
proforma opponents in the Execution Petition, and the petitioners are
willing to delete them from the array of parties in the Execution
proceedings.
6.1 Mr. Pratik Khubchandani, learned advocate, would submit that in
the Execution Petition in question, in column No.9, it is categorically
mentioned that execution of decree is sought against respondent No.1-
defendant No.1. It is submitted that as per the decree passed by the Trial
Court, the petitioners herein are entitled to receive Rs.30 lakhs with 6%
interest from 19.05.2010 till its realization from respondent No.1 herein
(original defendant No. 1). It is further submitted that as per the decree,
if the petitioners - plaintiffs and respondent No.1 - original defendant
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
No. 1 so prefer, they can jointly execute the decree to recover the
aforesaid amount from respondent Nos.2 to 4 herein. It is further
submitted that since the Execution Petition was not filed jointly along
with respondent No.1, there was no question arising for respondent No.1
to transpose himself in the Execution Petition.
6.2 Mr. Pratik Khubchandani, learned advocate, would submit that
without considering the direction issued by the Trial Court and the
decree, the Executing Court has committed a serious error in law by
allowing respondent No.1 herein to transpose himself as a co-applicant
in the execution proceedings. It is submitted that since the order
impugned passed by the Executing Court is not in consonance with the
decree whereby it has committed a jurisdictional error, which should be
corrected by this Court while exercising its powers under Article 227 of
the Constitution of India.
7. Per contra , Mr. Hari Brahmbhatt, learned advocate for
respondent Nos.2 to 4, would submit that since the petitioners herein do
not want to pursue the Execution Petition in question against
respondent Nos.2 to 4, nothing further is to be argued by them at this
stage, and they reserve their right to defend the Execution proceedings if
jointly filed by the petitioners and respondent No.1 in future.
8. Having heard learned advocates for the respective parties and
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
upon perusal of the impugned order, prima facie, it appears that the
petitioners herein are the original plaintiffs of Special Civil Suit No.790
of 2011 which was filed seeking specific performance of contract against
respondent No.1 herein, wherein the rest of the respondents are also
joined. After hearing the parties and considering the evidence on record,
the Trial Court vide its impugned judgment and decree dated
10.02.2020 partly allowed the suit whereby it held that the plaintiff is
entitled to recover Rs.30 lakhs from the first defendant with interest
from 19.05.2010 till the amount is realized.
9. Likewise, the respondent No.1 herein - first defendant is also
entitled to recover the decretal amount from defendant Nos.2 to 4 with
interest. At last, it has been observed that if the plaintiff and the first
defendant prefers, they can jointly execute the decree to recover the
amount with interest from respondent Nos.2 to 4. The relevant
operative portion of the judgment passed by the Trial Court reads thus:
“ORDER
The plaintiff is entitled to recover Rs.30,00,000/- (Rupees
st
Thirty Lacs Only) from the 1 defendant at the rate of interest of
6% p.a. thereon from the date 19/05/2010 till the amount is
realized with the cost of this suit.
st
Likewise, 1 defendant is also entitled to recover the
decretal amount from the defendant no.2, 3 & 4 at the same rate
of interest with cost of this suit.
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
st
If the plaintiff and the 1 defendant prefers they can
jointly execute this decree to recover the amount with interest
nd rd th
and cost of this suit from the 2 , 3 & 4 defendants payable to
plaintiff only.
Decree to be drawn accordingly.”
10. The petitioners – plaintiffs appeared to have instituted Execution
Petition No.14 of 2020 to recover that amount from respondent No.1
only. It is true that while instituting the Execution Petition, the
petitioners joined respondent Nos.2 to 4 herein, but the relief was
sought only against respondent No.1 (See: column No.9 of the Execution
Petition). In light of said facts and decree, the petitioners are entitled to
recover the amount from respondent No.1.
11. Respondent No.1 appears to have filed an impugned application
before the Executing Court in the pending Execution Petition, whereby
transposition was sought as a co-applicant, and vide impugned order,
the Executing Court allowed such prayer, thereby transposed
respondent No.1 as a co-applicant of the Execution Petition.
12. It appears that the Executing Court has considered the last part of
the operative portion of the judgment passed by the Trial Court, which
entitled the petitioners (plaintiffs) and respondent No.1 (defendant
No.1) to jointly execute the decree against respondent Nos.2 to 4 herein.
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
At the same time, the plaintiff is given an independent right to recover
the decreetal amount from respondent No. 1, and to execute such
decree, the Execution Petition is filed only against respondent No.1.
13. According to me, considering the nature of the decree and the
directions issued therein, as recorded above, in the Execution Petition
which is instituted by the petitioners – plaintiffs alone only against
respondent No.1 -defendant No.1, then the Executing Court could not
have transposed the original defendant No.1 - judgment debtor as a co-
applicant, inasmuch as no relief is sought against respondent Nos.2 to 4
herein by the petitioners while instituting the Execution Petition in
question.
14. Thus, considering the aforesaid facts and circumstances of the
case and the decree sought to be executed by way of the Execution
Petition in question by the petitioners alone, I am of the considered view
that the Executing Court has committed gross irregularity while
allowing respondent No.1 herein to be transposed as a co-applicant of
the Execution Petition in question by ignoring that he is a judgment-
debtor. Such an act on the part of the Executing Court, according to me,
amounts to going beyond the decree, which is not permissible in law,
and to that extent, the impugned order suffers from gross irregularity
which requires to be corrected by this Court while exercising its powers
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C/SCA/10218/2021 JUDGMENT DATED: 14/10/2026
(GJHC240360862021)
under Article 227 of the Constitution of India.
15. Since the petitioners before this Court has made a categorical
statement that they are not going to execute the decree against
respondent Nos. 2 to 4 at this juncture and they are ready to delete them
from the array of the Execution Petition, the necessary deletion of
respondent Nos.2 to 4 from Execution Petition No.14 of 2020 may be
undertaken by the petitioners before the Executing Court.
16. In view of the foregoing discussion and reasons, the present
petition is allowed. The impugned order dated 02.07.2021 passed by the
Principal Senior Civil Judge, Vadodara, below Exhibit-1 in Special
Execution Petition No.14 of 2020 is hereby quashed and set aside. Rule
is made absolute.
17. The Executing Court is hereby directed to hear and decide the
Execution Petition in question as early as possible, preferably within
three months from the date of receipt of a copy of this order.
(MAULIK J.SHELAT,J)
Lalji Desai
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