MODY MANSUKHRAM PUNJIRAM DECD Vs. SHAH BABULAL DAHYABHAI
HIGH COURT OF GUJARAT
Mody Mansukhram Punjiram Decd
SHAH BABULAL DAHYABHAI
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(1.)Being aggrieved and dissatisfied by the judgment and order dated 16/08/1988 passed by the Extra Assistant Judge Mehsana in Regular Civil Appeal No. 42 of 1988 the petitioner who is the heir of the deceased tenant has filed this revision application.
(2.)This proceeding arises out of the execution application filed by the opponent No. 1 original landlord for executing the decree dated 19/12/1968 in Regular Civil Suit No. 226 of 1965. That decree is a consent decree wherein the tenant has agreed to hand over possession of the suit shop on or before 1-1-1983 He has also agreed to pay the mesne profits till 1-1-1983. It has been further decreed that up to 1 the plaintiff landlord was not entitled to construct first floor on the suit premises. On 1-1-1983 when the tenant failed to hand over possession of the suit shop opponent No. 1 landlord had filed Regular Darkhast No. 3 of 1983 before the Civil Judge (J D ) Vijapur for executing the decree. The execution application was dismissed by the Civil Judge (J.D.) Vijapur by his judgment and order dated 22-2-1984 by holding that the consent decree was inexecutable so far as prayer for relief for possession of the property was concerned. Against that judgment and decree the petitioner preferred revision application before this Court. This Court directed that no revision application was maintainable but opponent Na. 1 could file an appeal before the District Court. Thereafter opponent No. 1 preferred the aforesaid appeal before the District Judge Mehsana. The said appeal came up for hearing before the Extra Assistant Judge Mehsana who by his well reasoned judgment and order dated 16-8-1988 allowed the said appeal and set aside the judgment and order passed below Darkhast Petition Ex. 1. He had further directed the learned Judge to execute the decree in accordance with law.
(3.)At the time of hearing of this revision application the learned Advocate for the petitioner vehemently submitted as under:
(1) That the consent decree is nullity because there is no specific finding given by the learned Judge while passing the decree that greater hardship would not be caused to the petitioner-tenant if the decree for eviction was passed;
(2) That the decree was obtained by opponent No. 1 and his brother Gokaldas. Hence opponent No. 1 alone could not file execution application;
(3) That the decree was inexecutable because it was barred by the period of limitation; and
(4) That the executing Court ought to have considered the say of the petitioner that at present the landlord does not require the suit shop for his personal requirement.
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