Dismissed

Aminaben Wd/O Yusufbhai Sheikh v. Rauf Alias Aslambhai Rajakbhai Bachau

Gujarat HC31 Jul 2018SA/223/2018

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal challenging an order directing eviction under Order 21 Rule 35 CPC. The court held the order was not a decree and thus not appealable under Section 96 CPC, rendering the second appeal under Section 100 CPC incompetent. A remedy before the appropriate forum remains open.

What did the court decide?

The Second Appeal filed under Section 100 of CPC is dismissed due to lack of maintainability on the ground that the impugned order was not a decree.

Aminaben Wd/O Yusufbhai Sheikh Vs Rauf Alias… — Execution and Attachment | Gujarat HC (2018)

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C/SA/223/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SECOND APPEAL NO. 223 of 2018

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AMINABEN WD/O YUSUFBHAI SHEIKH

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Versus

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RAUF ALIAS ASLAMBHAI RAJAKBHAI BACHAU

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Appearance:

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MS FARHANA Y MANSURI(2526) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1,2,3,4,5,6,7,8,9

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 31/07/2018 ORAL ORDER

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This matter was mentioned in the morning by the learned counsel appearing for the appellant to be taken up on urgent basis.

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According to the learned counsel, the decree is sought to be executed against the appellant and the possession of the premises is likely to be taken away by the original decree holder today. In such circumstances, the learned counsel requested that the papers of this Second Appeal may be called for and appropriate relief be granted.

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I take notice of the fact that the Executing Court i.e.the Additional Senior Civil Judge, Dhoraji passed an order dated 16/02/2018 directing the bailiff to take over the possession of the suit premises. The order passed by the Executing Court is one under the provisions of Order 21 Rule 35 of the Civil Procedure Code. Surprisingly, the order passed by the Executing Court under Order 21 Rule 35 CPC came to be challenged by the appellant herein by filing a Regular Civil Appeal under Section-96 of the CPC. Unfortunately, the 5^th Additional District Judge, Rajkot at

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Page 1 of 2

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C/SA/223/2018 ORDER

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Dhoraji had also no idea that an order passed by the Executing Court under the provisions of Order 21 Rule 35 CPC is not a decree and is not appealable. The 5^th Additional District Judge, Rajkot at Dhoraji although dismissed the appeal yet the same was not on the ground of maintainability, but otherwise on merits. In such circumstances referred to above, when the First Appeal under Section-96 of the CPC itself was not maintainable, then this Second Appeal under Section-100 of the CPC cannot be entertained.

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In view of the above, this Second Appeal fails and is hereby dismissed on the ground that the same is not maintainable in law. It shall be open for the appellant herein to avail of appropriate legal remedy before the appropriate forum in accordance with law so far as the order passed by the Executing Court under the provisions of Order 21 Rule 35 of the CPC is concerned.

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(J.B.PARDIWALA, J)

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aruna

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Aminaben Wd/O Yusufbhai Sheikh v. Rauf Alias Aslambhai Rajakbhai Bachau

Case brief

What is this about?

What did the court decide?

Aminaben Wd/O Yusufbhai Sheikh v. Rauf Alias Aslambhai Rajakbhai Bachau

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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