Gujarat High Court
Ghanshyambhai Ratibhai Barvaliya vs Khimajibhai Damjibhai Navadiya on 7 April, 2025
NEUTRAL CITATION
C/SCA/17438/2023 ORDER DATED: 07/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17438 of 2023
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GHANSHYAMBHAI RATIBHAI BARVALIYA
Versus
KHIMAJIBHAI DAMJIBHAI NAVADIYA
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Appearance:
MR PARTH B THUMMAR(13122) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/04/2025
ORAL ORDER
1. The present writ application is filed under Article 227 of
the Constitution of India seeking following reliefs :-
“A. Be pleased to admit and allow this Petition.
B. Be pleased to quash and set aside the impugned order dated
05.06.2023 passed by the Ld. 15th Additional District Judge, Surat
below Stay Application in Regular Civil Appeal No. 24 of 2023
(Annexure-P/1);
C. Be pleased to quash and set aside the impugned order dated
28.08.2023 passed by the Ld. 15th Additional District Judge, Surat
below Exhibit 13 Application in Regular Civil Appeal No. 24 of 2023
(Annexure-P/2);
D. Pending admission, hearing and final disposal, be pleased to
stay the impugned order dated 05.06.2023 passed by the Ld. 15th
Additional District Judge, Surat below Stay Application (Annexure-P/1)
and order dated 28.08.2023 passed by the Ld. 15th Additional District
Judge, Surat below Exhibit 13 Application in Regular Civil Appeal No.
24 of 2023 (Annexure-P/2);
E. Pending admission, hearing and final disposal, be pleased to
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stay execution of impugned judgement in Regular Civil Appeal No. 24
of 2023.
F. Pending admission, hearing and final disposal, be pleased to
stay further hearing in Regular Civil Appeal No. 24 of 2023.
G. Be pleased to grant Ex-parte Ad-interim relief in terms of para
9D to 9F of this Petition;
H. Cost of this petition be awarded.”
2. Heard learned advocate Mr. Parth B. Thummar for the
petitioner and learned advocate Mr. Manan A. Shah for the
respondent.
3. As far as possible, the parties will be referred as per
their original position in the suit.
Facts of the case
4.0 The petitioner herein is original defendant of Special
Civil Suit No. 323 of 2016 filed by respondent herein. The suit
is filed seeking specific performance of agreement to sale
and in alternative prayed for refund of Rs. 40 lakh with
interest paid by plaintiff in favour of defendant.
4.1 The trial Court vide its judgement and decree dated
31.12.2022 partly allowed aforesaid suit whereby, directed
defendant to repay Rs. 40 lakh with 6 % interest from thePage 2 of 19
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date of suit till payment.
4.2 The defendant appears to have challenged aforesaid
judgment/ decree before appellate Court by way of filing
Regular Civil Appeal No. 24 of 2023. The defendant appears
to have file injunction application under Order 41 rule 5 of
CPC, which came to be partly allowed by appellate Court
vide its order 05.06.2023 thereby, stay the execution of
decree impugned in the appeal on condition that defendant
shall submit bank guarantee of disputed amount within a
period of 30 days from the date of said order.
4.3 The defendant had filed impugned application below
Exh. 13 on 28.08.2023 before the Appellate Court, thereby,
requested the Court to allow defendant to collect original
sale-deed of suit property in question filed below Exh.49 in
the suit, thereby, defendant can mortgage suit property with
the bank by submitting original sale-deed to avail bank
guarantee.
4.4 The plaintiff appears to have objected impugned
application, whereby, contended that same is not filed within
time and cause which is assigned in application is not proper.
4.5 After hearing the parties, the appellate Court vide its
order dated 28.08.2023 has rejected the impugnedPage 3 of 19
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application.
4.6 Being aggrieved and dissatisfied with the impugned
orders dated 05.06.2023 and 28.08.2023, the defendant-
original appellant has filed the present writ application.
5. At the outset, learned advocate Mr. Parth B. Thummar,
under the instruction of his client, does not press prayer-B
made in Para-9 of the present writ application. So, petitioner
is not pressing present writ application against its challenge
of order dated 05.06.2023 passed by the appellate Court in
Regular Civil Appeal No. 24 of 2023.
6. In view of the aforesaid request made by learned
advocate Mr. Thummar having not objected by the learned
advocate Mr. Manan A. Shah appearing for the respondent,
permission as sought for is hereby granted. Thereby, present
writ application is confined to the remaining prayers made in
the present writ application.
Submission of petitioner-appellant-defendant
7. Leaned advocate Mr. Parth Thummar for the petitioner
would submit that original sale-deed produced on record of
the suit by plaintiff is in relation to the suit property which isPage 4 of 19
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undisputedly owned by defendant, the appellate Court was
required to allow defendant to get back original title deed of
suit property especially when trial Court has not decreed and
order for specific performance of execution of sale-deed of
suit property.
7.1 Learned advocate Mr. Thummar would further submit
that the appellate Court has committed a serious error in law
by observing that permission which has been sought by
defendant is in relation to disputed property as suit is
decreed by the trial Court, thereby, order only for refund
earnest money alleged paid by the plaintiff to defendant. So,
suit property is no more remain disputed property.
7.2 Learned advocate Mr. Thummar would further submit
that the decree passed by the trial Court is not challenged by
the plaintiff and in that circumstances, title document of suit
property requires to be returned back to defendant, thereby,
he can avail bank guarantee by submitting original title deed
with bank. He would further submit that as such during the
pendency of appeal, original document can be returned back
to the party by getting its certified copy and or to put any
condition upon party as may be deem fit by the Court.
7.3 Learned advocate Mr. Thummar would rely upon the
Order 13 rule 9 read with Section 151 of CPC, thereby, wouldPage 5 of 19
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submit that appellate Court ought have exercise its
discretion in favour of the defendant and to allow the
defendant to get back his original sale-deed which is
submitted by the plaintiff before the trial Court in the suit
proceedings.
7.4 To but buttress his argument, learned advocate Mr.
Thummar would rely on the following decisions.
(i) In the case of Sangeeta Shrikant Pingale Vs. Shrikant
Shankar Pingale reported in 2017 SCC Online Bom 10099.
(ii) In the case of K.K. Velusamy Vs. N. Palanisamy reported
in (2011) 11 SCC 275.
(iii) In the case of Manohar Lal Chopra Vs. Rai Bahadur Rao
Raja Seth Hirala reported in 1961 SCC Online SC 17.
7.5 Making the above submission, learned advocate Mr.
Thummar would request this Court to allow the present writ
application.
Submission of respondent-plaintiff
8. Per contra, learned advocate Mr. Manan A. Shah has
vehemently opposed the present writ application
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contending inter-alia that defendant has not disclosed true
and correct facts while submitting impugned application
whereby, he has not disclosed that original title deed (sale-
deed) of suit property has been submitted by plaintiff below
Exh. 49 in the suit and even not submitted any evidence that
defendant has applied to any bank to avail any bank
guarantee for which, an original title deed of suit property is
required.
8.1 Learned advocate Mr. Shah would further submit that
defendant has even not disclosed that he is not having any
other property than the suit property whereby, he can not
avail bank guarantee. He would further submit that suit filed
by defendant against plaintiff being Regular Civil Suit No. 78
of 2016 came to be partly decreed vide its judgement and
decree dated 31.12.2022 by the trial Court wherein also issue
No. 3 answered in favour of respondent herein – plaintiff
(defendant of aforesaid suit).
8.2 Learned advocate Mr. Shah would further submit that
by answering issue No.3 in favour of respondent herein, the
trial Court has accepted that petitioner herein has received
Rs. 40 lakh from respondent, thereby, executed agreement
for sale on 21.02.2015. He would further submit that such
finding of fact is not questioned by the petitioner by filing
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any independent appeal.
8.3 Learned advocate Mr. Shah would further submit that
Order 13 rule 9 of CPC would not apply in the facts of the
present case as original title deed is undisputedly submitted
by respondent- plaintiff. He would further submit that in
absence of any specific prayer and also any evidence to show
that petitioner is required to have original title document for
availing bank guarantee discretionary power not exercised
by the trial Court in favour of the petitioner cannot be
interfered with by this Court while exercising its power
under Article 227 of Constitution of India.
8.4 Making the above submission, learned advocate Mr.
Shah would request this Court to reject the present writ
application.
9. No other and further submissions have been made by
the learned advocates for the respective parties.
ANALYSIS
10. Before adverting to the issue involved in the matter, I
would to remind myself scope and power available to this
Court while exercising its power under Article 227 of the
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Constitution of India which is succinctly discussed in follow-
ing two decisions of Honourable Supreme Court of India.
First one in a case of Sameer Suresh Gupta TR PA Holder
vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374,
the relevant observation of the aforesaid judgment reads as
under:-
“[6] In our view, the impugned order is liable to be set aside be-
cause while deciding the writ petition filed by the respondent the
learned Single Judge ignored the limitations of the High Court’s ju-
risdiction under Article 227 of the Constitution. The parameters for
exercise of power by the High Court under that Article were consid-
ered by the two Judge Bench of this Court in Surya Dev Rai v. Ram
Chander Rai and Ors., 2003 6 SCC 675. After considering various
facets of the issue, the two Judge Bench culled out the following
principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-2002
in Section 115 of Code of Civil Procedure cannot and does not af-
fect in any manner the jurisdiction of the High Court under Articles
226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the
High Court, against which remedy of revision has been excluded by
the Code of Civil Procedure Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue to be subject to,
certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for cor-
recting gross errors of jurisdiction, i.e. when a subordinate Court is
found to have acted (i) without jurisdiction – by assuming jurisdiction
where there exists none, or (ii) in excess of its jurisdiction – by over-
stepping or crossing the limits of jurisdiction, or (iii) acting in fla-
grant disregard of law or the rules of procedure or acting in violation
of principles of natural justice where there is no procedure speci-
fied, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate Courts within the bounds of
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their jurisdiction. When the subordinate Court has assumed a juris-
diction which it does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available is being exer-
cised by the Court in a manner not permitted by law and failure of
justice or grave injustice has occasioned thereby, the High Court
may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdic-
tion, none is available to correct mere errors of fact or of law unless
the following requirements are satisfied: (i) the error is manifest and
apparent on the face of the proceedings such as when it is based
on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned
thereby.
(6) A patent error is an error which is self-evident, i.e. which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate
Court has chosen to take one view, the error cannot be called gross
or patent.
(7) The power to issue a writ of certiorari and the supervisory juris-
diction are to be exercised sparingly and only in appropriate cases
where the judicial conscience of the High Court dictates it to act lest
a gross failure of justice or grave injustice should occasion. Care,
caution and circumspection need to be exercised, when any of the
abovesaid two jurisdictions is sought to be invoked during the pen-
dency of any suit or proceedings in a subordinate Court and the er-
ror though calling for correction is yet capable of being corrected at
the conclusion of the proceedings in an appeal or revision preferred
there against and entertaining a petition invoking certiorari or super-
visory jurisdiction of High Court would obstruct the smooth flow
and/or early disposal of the suit or proceedings. The High Court
may feel inclined to intervene where the error is such, as, if not cor-
rected at that very moment, may become incapable of correction at
a later stage and refusal to intervene would result in travesty of jus-
tice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdic-
tion will not covert itself into a Court of Appeal and indulge in re-ap-
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preciation or evaluation of evidence or correct errors in drawing in-
ferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a
writ of certiorari and those calling for exercise of supervisory juris-
diction are almost similar and the width of jurisdiction exercised by
the High Courts in India unlike English Courts has almost obliter-
ated the distinction between the two jurisdictions. While exercising
jurisdiction to issue a writ of certiorari the High Court may annul or
set aside the act, order or proceedings of the subordinate Courts
but cannot substitute its own decision in place thereof. In exercise
of supervisory jurisdiction the High Court may not only give suitable
directions so as to guide the subordinate Court as to the manner in
which it would act or proceed thereafter or afresh, the High Court
may in appropriate cases itself make an order in supersession or
substitution of the order of the subordinate Court as the Court
should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini
Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para
49)
“(a) A petition under Article 226 of the Constitution is different from
a petition under Article 227. The mode of exercise of power by the
High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ
petition. The history of the conferment of writ jurisdiction on High
Courts is substantially different from the history of conferment of the
power of superintendence on the High Courts under Article 227 and
have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power
of superintendence under Article 227 of the Constitution, interfere
with the orders of tribunals or Courts inferior to it. Nor can it, in ex-
ercise of this power, act as a Court of appeal over the orders of the
Court or tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that would also op-
erate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of
their power of superintendence have been repeatedly laid down by
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this Court. In this regard the High Court must be guided by the prin-
ciples laid down by the Constitution Bench of this Court in Waryam
Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the prin-
ciples in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC
215] have been repeatedly followed by subsequent Constitution
Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v.
Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the
High Court in exercise of its jurisdiction of superintendence can in-
terfere in order only to keep the tribunals and Courts subordinate to
it, ‘within the bounds of their authority’.
(f) In order to ensure that law is followed by such tribunals and
Courts by exercising jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can
interfere in exercise of its power of superintendence when there
has been a patent perversity in the orders of the tribunals and
Courts subordinate to it or where there has been a gross and mani-
fest failure of justice or the basic principles of natural justice have
been flouted.
(h) In exercise of its power of superintendence High Court cannot
interfere to correct mere errors of law or fact or just because an-
other view than the one taken by the tribunals or Courts subordi-
nate to it, is a possible view. In other words the jurisdiction has to
be very sparingly exercised.
(i) The High Court’s power of superintendence under Article 227
cannot be curtailed by any statute. It has been declared a part of
the basic structure of the Constitution by the Constitution Bench of
this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261
: 1997 SCC (L&S) 577] and therefore abridgment by a constitu-
tional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not and cannot cut
down the ambit of High Court’s power under Article 227. At the
same time, it must be remembered that such statutory amendment
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does not correspondingly expand the High Court’s jurisdiction of su-
perintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable
principle. In an appropriate case, the power can be exercised suo
motu.
(l) On a proper appreciation of the wide and unfettered power of the
High Court under Article 227, it transpires that the main object of
this article is to keep strict administrative and judicial control by the
High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial,
is to maintain efficiency, smooth and orderly functioning of the en-
tire machinery of justice in such a way as it does not bring it into
any disrepute. The power of interference under this article is to be
kept to the minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure and unpol-
luted in order to maintain public confidence in the functioning of the
tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not
to be exercised just for grant of relief in individual cases but should
be directed for promotion of public confidence in the administration
of justice in the larger public interest whereas Article 226 is meant
for protection of individual grievance. Therefore, the power under
Article 227 may be unfettered but its exercise is subject to high de-
gree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be coun-
terproductive and will divest this extraordinary power of its strength
and vitality.”
(emphasis supplied)
10.1 The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein
the Hon’ble Supreme Court of India has held as under:-
“15. Having heard the counsel for the parties, we are clearly of the
view that the impugned order [Prakash Chand Goel.Garment Craft,Page 13 of 19
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2019 SCC OnLine Del 11943] is contrary to law and cannot be sus-
tained for several reasons, but primarily for deviation from the lim-
ited jurisdiction exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising supervisory juris-
diction does not act as a Court of first appeal to reappreciate,
reweigh the evidence or facts upon which the determination under
challenge is based. Supervisory jurisdiction is not to correct every
error of fact or even a legal flaw when the final finding is justified or
can be supported. The High Court is not to substitute its own deci-
sion on facts and conclusion, for that of the inferior Court or tri-
bunal.[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar,
(2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exer-
cised is in the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of fundamental princi-
ples of law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no evidence at all
to justify, or the finding is so perverse that no reasonable person
can possibly come to such a conclusion that the Court or tribunal
has come to. It is axiomatic that such discretionary relief must be
exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass
Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-
102, para 6)
“6. The scope and ambit of exercise of power and jurisdiction by a
High Court under Article 227 of the Constitution of India is exam-
ined and explained in a number of decisions of this Court. The ex-
ercise of power under this article involves a duty on the High Court
to keep inferior Courts and tribunals within the bounds of their au-
thority and to see that they do the duty expected or required of
them in a legal manner. The High Court is not vested with any un-
limited prerogative to correct all kinds of hardship or wrong deci-
sions made within the limits of the jurisdiction of the subordinate
Courts or tribunals. Exercise of this power and interfering with the
orders of the Courts or tribunals is restricted to cases of serious
dereliction of duty and flagrant violation of fundamental principles of
law or justice, where if the High Court does not interfere, a grave in-
justice remains uncorrected. It is also well settled that the High
Court while acting under this Article cannot exercise its power as an
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appellate Court or substitute its own judgment in place of that of the
subordinate Court to correct an error, which is not apparent on the
face of the record. The High Court can set aside or ignore the find-
ings of facts of an inferior Court or tribunal, if there is no evidence
at all to justify or the finding is so perverse, that no reasonable per-
son can possibly come to such a conclusion, which the Court or tri-
bunal has come to.”
(emphasis supplied)
11. Now, adverting to the issue germane in the matter, at
the outset, it is required to be noted herein that both the
parties have filed their respective suits against each other,
which are partly decreed in their favour. Nonetheless, suit
filed by the respondent came to be decreed against
petitioner whereby, he was ordered to pay Rs. 40 lakh with 6
% interest from the date of suit till payment to the plaintiff.
Further, suit filed by the petitioner is also decreed whereby,
respondent herein is restrained from creating any mortgage,
loan, encumbrance and further permanently injuncted from
transferring the suit property and also injuncted not to
disturb the possession of the petitioner. Furthermore, as per
issue No.3 framed by the trial Court in the suit filed by the
petitioner, the trial Court held that respondent herein has
paid Rs. 40 lakh to petitioner. Such decree passed by the trial
Court in the suit filed by the petitioner is not questioned by
him. So, in view of the aforesaid facts, prima facie, a finding
of fact recorded in both the suits clearly shows that
petitioner has received Rs. 40 lakhs from respondent which is
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ordered for refund in a suit filed by the respondent.
12. The petitioner-defendant has not complied with order
dated 05.06.2023 within time granted by the appellate Court
but filed impugned application below Exh. 13 without any
supporting evidence to show that in fact bank has demanded
from him an original title document of his property.
Moreover, plain reading of the impugned application would
indicate that it is not stated by him that suit property is the
only property of defendant wherein he is required to create
a charge over it to avail bank guarantee. Furthermore, appeal
is considered to be continuation of suit proceeding, original
title document sought to be obtained is in relation to
disputed- suit property. Prima-facie, no error can be found in
the impugned order.
13. Now, to appreciate submissions made by the learned
advocate Mr. Thummar, provisions of Order 13 rule 9 of CPC
would not be applicable to the facts of the present case as
original title document is undisputedly not produced by
petitioner- defendant but submitted by respondent-
plaintiff. At this stage, it is apt of refer Order XIII rule 9 of
CPC, which reads as under :-
“ORDER XIII-PRODUCTION, IMPOUNDING AND RETURN OF
DOCUMENTS.
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9. Return of admitted documents– (1) Any person, whether a party to
the suit or not, desirous of receiving back any document produced by
him in the suit and placed on the record shall, unless the document is
impounded under rule 8, be entitled to receive back the same,– (a)
where the suit is one in which an appeal is not allowed, when the suit
has been disposed of, and (b) where the suit is one in which an appeal
is allowed, when the Court is satisfied that the time for preferring an
appeal has elapsed and that no appeal has been preferred or, if an
appeal has been preferred, when the appeal has been disposed of :
[Provided that a document may be returned at any time earlier than that
prescribed by this rule if the person applying therefor–
(a) delivers to the proper officer for being substituted for the original,–
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy which has been
examined, compared and certified in the manner mentioned in sub-rule
(2) of rule 17 of Order VII, and (b) undertakes to produce the original, if
required to do so]
Provided also, that no document shall be returned with, by force of the
decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall be
given by the person receiving it.”
14. Thus, plain reading of Order XIII rule 9 of CPC would
makes position very clear that petitioner can not allow to get
back original document which is not produced by him.
Furthermore, certified copy of sale deed was not available
with petitioner for its delivers as provided under said
provision. It does not appear from the record that petitioner
had ever argued and or requested appellate Court which is
now argued in present writ application. As no such request
so made by petitioner before Court below.
15. So far as application of Section 151 is concerned,
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considering the peculiar facts and circumstances of the
present case and in absence of any evidence to show that
petitioner is not having any other property on which he can
avail bank guarantee and having not challenged finding of
fact recorded by the trial Court while answering issue No. 3
in his suit by way of independent regular appeal as well as in
absence of any foundational fact with documentary evidence
that in fact petitioner has approached any bank to avail bank
guarantee which demanded original title deed, a
discretionary power available to the Court not exercised in
favour of petitioner can not be considered to be bad in law.
16. The judgments cited by the learned advocate Mr.
Thummar would not carry the case of the petitioner further
as it is not directly applicable to the issue germane in the
present writ application. So, no need to further discuss by
this Court having already answered his submission
hereinabove.
17. At last, this Court is exercising its power under Article
227 of the Constitution of India whereby, as per settled legal
position of law as declared by Honourable Apex Court in
aforesaid decisions, not every error of law committed by the
Court below is required to be interfered by this Court,
except where there is gross error of law or jurisdiction error
committed by the Court below while passing the impugned
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order which I don’t find in the order impugned.
18. Having not found any gross error of law or jurisdictional
error committed by the appellate Court while passing the
impugned order, this Court would not like to interfere with
the impugned order.
19. As order dated 05.06.2023 passed by the appellate
Court is not complied by the petitioner – defendant in time,
it is open for the respondent – plaintiff to execute decree
impugned in the Regular Civil Appeal No. 24 of 2023 in
accordance with law unless petitioner hereby provides bank
guarantee as per order dated 05.06.2023 within 15 days from
today.
20. Thus, in view of aforesaid, present writ application is
found meritless requires to be dismissed, is hereby
dismissed. Notice is discharged. No order as to costs.
(MAULIK J.SHELAT,J)
SALIM/
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