SUBHASHBHAI AMBALAL PATEL vs ROHITKUMAR JAMIYATRAM JOSHI
- Court
- Gujarat High Court
C/SCA/2701/2026 JUDGMENT DATED: 26/10/2026
(GJHC240107012026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2701 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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SUBHASHBHAI AMBALAL PATEL & ANR.
Versus
ROHITKUMAR JAMIYATRAM JOSHI & ORS.
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Appearance:
MR. NISARG N TRIVEDI(17294) for the Petitioner(s) No. 1,2
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 26/10/2026
JUDGMENT
1. Heard Mr. Nisarg N. Trivedi, learned advocate for
the petitioners.
2. This petition is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
“A. Quash and set aside the Order dated 29th November 2025
(Annexure – ‘A’) passed by the Ld. Principal Civil Court, Dakor in
Execution Petition No. 39 of 2019, whereby the Petitioners’
objections at Exhibit – 23 (Annexure – ‘K’) and Application at
Exhibit – 32 (Annexure – ‘L’) have been rejected;
B. Declare and hold that the execution carried out by the Court
Commissioner is beyond the scope of the Judgment and Decree
dated 4th July 2002, particularly insofar as it relates to Revenue
Survey No. 1800;
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C. Direct fresh inspection and execution to be carried out strictly
in accordance with the Judgment dated 4th July 2002 and in the
presence of the Revenue Authorities as well as the Petitioners;
D. Direct restoration of ingress and egress to the Petitioners’ land
by filling, levelling or rectifying the excessive and arbitrary
digging carried out by the Court Commissioner;
E. Stay further execution proceedings pursuant to Execution
Petition No. 39 of 2019 during the pendency and final disposal of
the present Special Civil Application;
F. Grant ad-interim relief in terms of prayer (E) above;
G. Any other and further reliefs which may be deemed just and
proper in the interest of justice, equity and good conscience.”
3. At the outset, Mr. Trivedi, learned advocate for the
petitioners, would submit that as per his information, the
execution petition in question is already over before the
executing Court. Nonetheless, Mr. Trivedi, learned
advocate, would submit that considering the nature of
dispute and the objection raised by the petitioners before
the executing Court, whereby the executing Court passed
the impugned order, this Court may examine the petition
on merits.
3.1. Mr. Trivedi, learned advocate, would submit that as
per the judgment and decree passed by the Trial Court,
there was no reference of any encroachment to be
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removed from Survey No. 1800 and as such the direction
was issued qua Survey No. 1652/2 for removal of
drain/conduit. It is submitted that the executing Court
has gone beyond the judgment and decree passed by the
Courts below and as such the Commissioner appointed by
the executing Court below Exhibit-12 has unauthorizedly
prepared a drain/conduit, whereby the petitioners are not
in a position to enter their own land i.e., Survey No. 1800.
3.2. Mr. Trivedi, learned advocate, would further submit
that the executing Court without deciding the issue on
merit rejected the objection on the ground of delay which
ultimately resulted in miscarriage of justice.
3.3. Mr. Trivedi, learned advocate, would further submit
that this Court may exercise its supervisory power under
Article 227 of the Constitution of India and remand the
matter back to the executing Court with a direction that
the Court Commissioner shall be reappointed and see to
it that there would not be any difficulty caused to the
petitioners to use their agricultural field.
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3.4. Making the above submissions, Mr. Trivedi, learned
advocate, would request this Court to entertain this
petition.
4. Having heard Mr. Trivedi, learned advocate for the
petitioners and upon perusal of the impugned order
passed by the executing Court on 29.11.2025 below
Exhibit- 23 and 32 in the Execution Petition No. 39 of
2019 in question, prima facie , it appears that after
passing of the judgment and decree by the Trial Court,
the same was challenged before the Appellate Court by
the petitioners, but the appeal was not entertained as
dismissed by the Appellate Court.
4.1. After that, the respondents herein appear to have
filed an execution petition in question wherein also
despite service of notice upon the petitioners, they have
chosen not to appear and contest the execution on merit.
Thereafter, below Exhibit-12 the executing Court vide its
order dated 24.03.2023 appointed the Court
Commissioner for proper execution of decree. The Court
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Commissioner appears to have executed/implemented the
decree which was sought to be executed by way of
execution and prepared his report on 27.04.2023. A bare
perusal of the report and map prepared by the Court
commissioner indicates that whatever the encroachment
made by the petitioners herein appears to have been
removed and by doing so, he prepared a drain/conduit. It
is not in dispute that principles of natural justice were not
followed by the Executing Court and/or the Court
Commissioner, as the case may be. This implementation
of the decree by the Commissioner sought to be
questioned by the petitioners after about two years and
three months, inasmuch as the impugned application
came to be filed by the petitioners below Exhibit-32 on
25.07.2025. There is no reasonable explanation
forthcoming from side of the petitioners to file such
application after more than two years from the
implementation of the decree.
5. So far as the objection filed by the petitioners below
Exhibit-23 is concerned, since it was not filed within a
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stipulated time, the same was rightly not considered by
the executing Court. Once the stage of filing an objection
is over, later on, the petitioners – the judgment debtors
cannot be allowed to submit their objection. Likewise, the
impugned application filed below Exhibit-32 much after
the implementation of decree and for two years and three
months, the petitioners never raised any grievance about
such execution that by way of preparing the drain/conduit
by the Commissioner, it caused inconvenience and
hindrance to the petitioners to enter their field, i.e.,
Survey No.1800.
6. Having considered the aforesaid facts and
circumstances and considering the fact that there was a
substantial delay on the part of the petitioners in filing
the impugned application and objection in the execution
proceeding, thus, both were correctly rejected. According
to me, no case has been made out by the petitioners to
interfere with the impugned order, inasmuch as there is
no perversity or gross irregularity found therein which
warrants the interference of this Court under Article 227
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of the Constitution of India. [See Sameer Suresh Gupta
TR PA Holder vs. Rahul Kumar Agarwal, reported in
2013 (9) SCC 374 (Para 6 and 7) and Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181
(Para 15 and 16)] .
7. In view of the foregoing discussions and reasons,
this petition lacks merit and is accordingly dismissed. No
order as to costs.
(MAULIK J.SHELAT,J)
SHAHANAZ
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