1. This writ petition is filed by the petitioners original defendants - appellants challenging the order dated 09.03.2018, passed by the learned 3rd Additional Civil Judge, Himmatnagar in Regular Execution Petition No. 17 of 2016 and consequent notice by the Chief Officer, Himmatnagar Nagar Palika dated 16.03.2018.
2. Notice to respondent No. 3 is duly served, however, nobody has put in appearance qua him.
4. Heard, learned advocate Mr. Vaibhav Sheth for the petitioners and learned advocate Mr. Nirav Sanghavi for the respondent Nos. 1 and 2.
4.1 It is submitted by the learned advocate for the petitioners that the respondent Nos. 1 and 2 had filed a Regular Civil Suit No. 91 of 2009 before the civil Court, Himmatnagar for declaration and possession of the suit property. The said suit was decreed in favour of the plaintiffs respondent Nos. 1 and 2 herein by way of a judgment and decree dated 29.10.2015 and the petitioners were directed to remove the unauthorized construction/ encroachment from the suit property within 90 days and handover the peaceful possession to the plaintiffs respondent Nos. 1 and 2 herein. Against the said judgment and decree, Civil Appeal No. 14 of 2016 came to be filed along with stay application, before the learned District Court, Himmatnagar, which are pending adjudication. It is submitted that, in the meantime, the respondent Nos. 1 and 2 original plaintiffs filed the execution petition in which, the petitioners filed objections before the executing Court pointing out pendency of appeal before the learned first appellate Court, however, the executing Court, without considering the objection/s raised by the petitioners and in the absence of the learned advocate for the petitioners before the executing Court, allowed the said execution petition and passed the directions as referred to herein above and accordingly, the Chief Officer, Himmatnagar Nagar Palika issued notice in question to the petitioners and hence, this petition.
4.2 The learned advocate for the petitioners submitted that the learned executing Court, without considering the objections of the petitioners, has passed the impugned order that too in the absence of the learned advocate representing the petitioners before it. It is submitted that the learned executing Court ought to have considered the fact that the petitioners have already filed the civil appeal against the judgment and decree along with stay application, which are pending, however, without considering the said aspect of the matter, the learned executing Court proceeded with the execution petition and passed the impugned order. Further, the learned executing Court has also committed an error in directing the respondent No. 3 for the purpose of execution of the judgment and decree dated 29.10.2015 although the alleged construction belongs to a private owner.
4.3 Thus, making above submissions, it is urged that present writ petition may be allowed and the impugned order and consequent notice may be set aside.
5. As against this, the learned advocate for the respondent Nos. 1 and 2, while heavily opposing the present writ petition, submitted that the judgment and decree is in favour of the respondent Nos. 1 and 2 herein. Further, after hearing bipartite and on merits, the said judgment and decree is passed by the learned trial Court, wherein, the respondent Nos. 1 and 2 herein - original plaintiffs filed the execution petition, which came to be allowed and consequent thereto, notice has been issued by the Chief Officer, Himmatnagar Nagar Palika and accordingly, no interference is required at the hands of this Court. Accordingly, it is requested that this writ petition may not be entertained and required to be rejected.
6. Regard being had to the submissions advanced by the learned advocates for the respective parties and perusing the papers available on record, it appears that the suit filed by the respondent Nos. 1 and 2 herein is decreed in their favour against which, the petitioners have filed the appeal along with stay application before the District Court, Himmatnagar which are pending adjudication.
6.1 It appears that the petitioners have taken specific objections narrating such facts before the learned executing Court, however, the same has not been considered by the Court concerned. Further, it is also a fact that on the said date, the learned advocate representing the petitioner before the learned executing Court was not present, however, without according, any opportunity of hearing, the order in question is passed by the learned trial Court. Further, from a bare perusal of the impugned order, it appears that the learned executing Court has not dealt with the objections laid in the reply filed by the petitioners in execution petition and only has mentioned that the appellate Court has not stayed the judgment and decree. It is trite principle of law that every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities, unless technicalities are so predominant that they overshadow the merits of the matter. Accordingly, in the considered opinion of this Court, interest of justice would serve if the order impugned herein is set aside and the appeal is expedited.
7. In the backdrop as aforesaid, present writ petition succeeds and is allowed accordingly. The impugned order dated 09.03.2018, passed by the learned 3rd Additional Civil Judge, Himmatnagar passed in Regular Execution Petition No. 17 of 2016 and consequent notice dated 16.03.2018, issued by the Chief Officer, Himmatnagar Nagar Palika are hereby set aside.
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/> 7.1 The learned first appellate Court is directed to deal with and decide the Civil Appeal No. 14 of 2016 as expeditiously as possible, preferably, within three months from the date of receipt of writ of this order, on its own merits, in accordance with law. 7.2 The execution of the judgment and decree dated 29.10.2015 passed in Regular Civil Suit No. 91 of 2009 is stayed till then. 7.3 The parties are directed to cooperate the learned first appellate Court in hearing of the appeal and shall not ask for unnecessary adjournments. 7.4 Rule is made absolute accordingly with no order as to costs.