Gujarat High Court
Legal Heirs Of Decd. Purshottambhai … vs Jagdishbhai Devrajbhai Desai on 6 July, 2026
NEUTRAL CITATION
C/SCA/7428/2026 JUDGMENT DATED: 06/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7428 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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LEGAL HEIRS OF DECD. PURSHOTTAMBHAI MANJHIBHAI
KUMBHANI & ORS.
Versus
JAGDISHBHAI DEVRAJBHAI DESAI
=============================================
Appearance:
APURVA K JANI(7057) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,2,3,4
=============================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/07/2026
JUDGMENT
1. The present writ petition is filed under Article 227 of the
Constitution of India seeking following reliefs:-
“A) This Hon’ble Court be pleased to quashing and set
aside the Order dated 18.03.2026 (at Annexure – E)
passed by the Ld. Trial Court and be further pleased
to allow the present petition by allowing the
application at Exh. 84 (At Annexure – B) as prayed for;
B) Pending admission, hearing and final disposal, this
Hon’ble Court may be pleased to stay further
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before the Ld. Principal Sr. Civil Judge, Amreli;
C) Any other relief which this Hon’ble Court deems fit
in the interest of justice.”
SHORT FACTS: –
2. The petitioners herein are original defendants, whereas
the respondent is the original plaintiff. For the sake of
convenience, hereinafter, the parties will be referred to as per
their original position in the suit.
3. The plaintiff instituted a Special Civil Suit No.65 of 2011,
seeking specific performance of an Agreement to Sell
(hereinafter referred to as ATS) executed by the defendants
on 18.10.2010. At the time of execution of ATS, part
consideration of Rs.6 lakh was paid by the plaintiff. Since the
defendants did not perform their part of the contract, the
aforesaid suit was filed.
3.1 After hearing the learned advocates appearing for the
parties, the Trial Court, vide judgment and decree dated
22.12.2017, partly allowed the suit in favour of the plaintiff.
3.2 It appears that as per the operative portion of the
judgment/decree of the Trial Court, the measurement of the
suit property was required to be undertaken and accordingly,
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the payment to be made by the plaintiff to the defendants. The
defendant No.1 appears to have issued a letter dated
8.2.2018, whereby called upon the plaintiff to deposit the
balance sale consideration. According to the plaintiff, since all
the defendants are residing at Mumbai and none of them have
come forward for measurement of the suit land, he was
unable to deposit the balance amount. As per the judgment
and decree, after completion of measurement and
ascertaining the area of suit land, the plaintiff was supposed
to deposit the balance amount.
3.3 The plaintiff appears to have filed an execution
application against the defendants on 03.12.2022, being
Execution Application No.2 of 2022. The defendants have
appeared but not filed any objection at the relevant point of
time. The execution was not progressed rather delay on the
ground of settlement talks between the parties.
3.4 It seems that the Executing Court, vide its order dated
17.01.2026 passed below Exhibit-30 filed by the plaintiff,
under Order 21 Rule 34 of CPC, directed the defendants to
execute the sale deed within seven days from the said order.
Accordingly, rejected objections of the defendants filed below
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Exhibit-34. At that stage, on 6.2.2026, the defendants filed the
impugned application below Exhibit-84 under Section 28 of
the Specific Relief Act, 1963 (hereinafter referred to as ‘the
Act, 1963’) in the suit. According to the defendants, since the
plaintiff did not deposit the amount for quite a long time after
passing of the decree and pending the execution application
also not shown his willingness to deposit the decretal amount,
the impugned application filed under Section 28 of the Act,
1963, may be allowed.
3.5 The plaintiff filed his detail reply objecting the impugned
application wherein, in paragraph-8 of his reply, has stated
the factual scenario happened post-decree. According to the
plaintiff, he was all throughout ready to perform his part of
the contract and the amount was ready with him but none of
the defendants turned up for the measurement of the suit
land, he could not pay/deposit the amount; rather, as a last
recourse, he filed the execution petition. It is also stated that
after the order passed in his application filed below Exhibit-30
(dated 17.01.2026), whereby the plaintiff was supposed to pay
the decretal amount before 06.02.2026, the matter was
mentioned by the defendants to the in-charge Court and upon
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oral order passed, the plaintiff was not permitted to act upon
said order passed below Exhibit-30. As per the say of the
plaintiffs, he was and is always ready and willing to deposit
the decretal amount as he is fighting since last 15 years.
3.6 After hearing the parties and appreciating the contention
of the parties as well as the conduct of the defendants, the
Executing Court vide its impugned order dated 18.03.2026,
rejected the impugned application. Nonetheless, it has been
observed by the Executing Court in the impugned order that
the defendants are entitled to receive 9% interest on Rs.
26,76,812 (principal amount) from 08.02.2018 to 03.12.2022
when the execution application was filed, it comes to Rs.
36,37,614/-. The aforesaid amount with interest is ordered to
be deposited by the plaintiff within two weeks from the date of
impugned application.
3.7 Feeling aggrieved and dissatisfied with the order
impugned in this petition, the defendants have preferred this
petition.
SUBMISSION OF THE PETITIONERS – DEFENDANTS:-
4. Mr. Apurva Jani, learned advocate for the petitioners,
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would submit that the Executing Court has committed
jurisdictional error by not appreciating that there was no
readiness and willingness on the part of the plaintiff to deposit
the balance sale consideration after passing of the decree and
despite calling upon the plaintiff to deposit such amount vide
letter dated 8.2.2018 by defendant No.1, it was not deposited,
then the defendants are entitled to relief as prayed in the
impugned application filed under Section 28 of the Act, 1963.
4.1 It is submitted that the Executing Court has not
recorded its satisfaction that there was no intentional delay on
the part of the plaintiff not to deposit the decretal amount and
considering the fact that there is a huge delay of more than 8
years in depositing the amount by the plaintiff, from passing
of the decree, the impugned application ought to have been
allowed by the Executing Court.
4.2 It is further submitted that it was incumbent upon the
plaintiff to get the land measured and thereafter to deposit /
pay the decretal amount to the defendants, but having failed
to do so and in absence of any material at least available on
record before the Executing Court, to show his readiness and
willingness, the impugned application ought to have been
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allowed by the Executing Court.
4.3 To buttress his argument, he would rely upon the
following decisions of the Hon’ble Apex Court:-
i. Habban Shah Vs. Sheruddin reported in 2026
LiveLaw (SC) 466;
ii. Ram Lal Vs. Jarnail Singh (Deced.) Through
Lrs & Ors. reported in [2025] 2 SCR 1745 :
2025 INSC 301;
iii. P. Shyamala Vs. Gundlur Masthan reported in
[2023] 3 S.C.R. 354.4 Making the above submissions, Mr. Jani, learned
advocate would request this Court to allow the present
petition.
5. No other and further submissions are being made by the
learned advocate for the petitioners.
ANALYSIS AND REASONING:-
6. Heard Mr. Jani, learned advocate for the petitioners at
length.
7. Having heard Mr. Jani, learned advocate at length and
upon perusal of the impugned order passed by the Executing
Court, following would emerge: –
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7.1 The plaintiff’s suit seeking specific performance of ATS
dated 18.10.2008, was allowed by the Trial Court on
22.12.2017. It is not in dispute that defendants have not
challenged the aforesaid judgment and decree before the
Appellate Court.
7.2 Since the judgment/decree passed by the Trial Court has
remained unchallenged, the parties are bound by it. The fair
translation of operative portion of the aforesaid judgment of
the Trial Court reads thus: –
“:: ORDER ::
(1) The present suit of the plaintiff is hereby partly allowed.
(2) It is ordered that after the measurement of the suit property, if the
measurement of the suit property turns out to be 1-10-28 Hectare-Are
as mentioned in the agreement to sell (Banakhat), the plaintiff shall
pay the remaining balance amount of Rs.26,76,812/- (Rupees Twenty-
Six Lakh Seventy-Six Thousand Eight Hundred Twelve Only) to the
defendant of this case. Upon such payment, the defendant is ordered
to execute the sale deed of the suit property at the plaintiff’s expense,
either in the name of the plaintiff or in the name of any person
specified by the plaintiff.
(3) It is ordered that after the measurement of the suit property, if the
measurement of the suit property turns out to be more than the
measurement specified in the agreement to sell (Banakhat), then as
per the conditions of the agreement to sell, at the rate of Rs.
4,81,000/- (Rupees Four Lakh Eighty-One Thousand Only) per 1
Vigha, upon the plaintiff paying the calculated demanded amount to
the defendant, the defendant is ordered to execute the sale deed of the
suit property at the plaintiff’s expense, either in the name of the
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plaintiff or in the name of any person specified by the plaintiff.
(4) Simultaneous with the execution of this sale deed, the defendant is
ordered to hand over actual and peaceful possession of the suit land
to the plaintiff.
(5) If the defendants do not execute the sale deed in favor of the
plaintiff after accepting the amount as per the order, or if the
defendants fail to comply with the aforementioned order, it is ordered
that the sale price as per the order can be deposited in the court, and
the execution of the order can be carried out through a Court
Commissioner.
(6) The alternative relief sought by the plaintiff is hereby rejected.
(7) It is ordered that both parties shall bear their own costs.
(8) Let the decree be drawn up accordingly as per the order.”
7.3 As per the said final order, the suit land was required to
be measured first; if, after such measurement, the area found
exceeded that mentioned in ATS, the plaintiff was required to
pay Rs. 4,81,000/ per vigha to the defendants, otherwise, the
plaintiff was required to pay Rs. 26,76,812/. There is no time
limit fixed by the Trial Court either for measurement or for
making such payment by the plaintiff to the defendants.
7.4 The defendant No.1 called upon the plaintiff vide his
letter dated 08.02.2018 to pay/deposit the sale consideration
as ordered by the Trial Court. At the same time, it is a specific
case of the plaintiff in his reply to the impugned application
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(paragraph-8) that, even though he requested the defendant
No.1 to come forward for measurement, but none of the
defendants have turned up for such exercise; rather, the
defendant No.1 was communicating with plaintiff that his
other brothers, i.e., rest of the defendants, are not agreed for
the measurement and sought sometime, thereby things got
delayed.
7.5 Prima facie, the measurement of any agricultural land,
i.e. suit land, ought to have been carried out in presence of
their owner, i.e., defendants, as the plaintiff could not have
measured the land in absence of the defendants. It is
undisputed fact that all the defendants were and are residing
at Mumbai, whereas the suit land is situated at District-
Amreli. Thus, in absence of their presence, the measurement
of suit land could not be possible.
7.6 There is nothing on record to show that such contention
of the plaintiff made in paragraph-8 of his reply is either
denied or disputed by the defendants, inasmuch as there is
nothing on record to suggest that in or after the year 2018,
the defendants made themselves available at the site for
measurement and / or approached the Revenue Authority for
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its measurement, as the case may be. The execution
application is filed on 3.12.2022, which itself suggests that the
plaintiff was and is ready and willing to perform his part of
contract, i.e., to deposit the amount subject to measurement
can be undertaken.
7.7 From the reply of impugned application and so also, the
impugned order, the Executing Court has recorded the
conduct of the defendants which suggests that after receipt of
the notice in the execution, the defendants, in fact, consumed
the time on one pretext or other and at one stage shown their
willingness to settle the matter. When nothing fruitful
materialized, the plaintiff filed an application below Exhibit-30
under Order 21 Rule 34 of CPC, wherein the Executing Court,
vide its order dated 17.01.2026, directed the defendants to
execute the sale deed within week. The Executing Court vide
its order dated 23.01.2026, directed the Court Commissioner
to execute the sale deed, subject to plaintiff deposit a sum of
Rs. 26,76,812/- in the Court, and the next date of hearing was
fixed on 06.02.2026.
7.8 The impugned order suggests that before said order
could have been implemented, an urgent application was
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moved by the defendants requesting the Executing Court to
take up the matter prior to the said date, and at that stage, on
06.02.2026 itself, the impugned application was filed by the
defendants under Section 28 of the Act, 1963.
8. The Executing Court has considered the entire facts of
the case in detail and ultimately found that no case is made
out by the defendants, whereby they can be granted any relief
under Section 28 of the Act 1963; rather it has been
specifically observed in the impugned order that the execution
petition was filed on 03.12.2022, whereas the impugned
application was filed by the defendants on 06.02.2026. It is
also observed that subsequent to defendant No.1’s letter
08.02.2018, what had happened, neither party has placed
anything on record, rather remained silent. The plaintiff has
made his stand clear in para-8 of his reply to the impugned
application. It seems that the time spent after filing of the
execution petition appears to be due to the talks of settlement
going on between the parties. The fact remained that in the
first instance, the defendants did not filed objections opposing
the execution, which also indicates that the defendants had
filed the impugned application as a last resort. The defendants
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are unable to prove that there was an intentional or deliberate
delay on the part of the plaintiff for complying with the
decree, i.e., deposit of decretal amount. It is evident from the
record that the plaintiff was always ready and willing to
perform his part of the contract after passing of the
judgement/decree, but due to non-cooperation from the
defendants, the suit land could not have been measured,
resulted into none deposit of the amount. It seems that after
measurement, the area of the suit land could have been
ascertained and accordingly, the plaintiff was required to
deposit the amount.
9. Thus, considering the aforesaid entire set of facts and
circumstances of the case and so also the conduct of the
parties, it cannot be argued by defendants that post-decree,
the plaintiff was not ready and willing to perform his part of
contract; rather, it was incumbent upon the defendants to
come forward for measurement of their land and thereafter,
could have sought for the payment or insisted for deposit of
the decretal amount. Since none of the required acts were
performed by the defendants, then they cannot be allowed to
rescind the contract, especially the plaintiff has already shown
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his willingness to deposit the amount.
10. With respect to the decisions cited by Mr. Jani, learned
advocate for the petitioners, this Court finds that none are
applicable, for the following reasons.
10.1 In the case of Habban Shah (supra), it is observed
that in absence of any application filed under Section 28 of
the Act, 1963, the contention of the defendants can be looked
into. In the present case, such application was filed and
decided, albeit against the defendants. Further, in the said
case, the judgment/decree passed itself stipulated the time
period for making payment of the decretal amount, which is
not the case at hand. It appears that execution filed was
dismissed for default. All these facts are completely missing in
the present case.
10.2 In the case of Ram Lal (supra), the Hon’ble Apex Court
has held that even if there is no stipulation of time period to
deposit the decretal amount, it would not mean that at any
point of time, the decree holder can deposit the amount,
rather it is incumbent upon him to deposit the amount within
reasonable time. Again, what is the reasonable time is
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dependent upon the facts of each case and there cannot be
any straight jacket formula. It appears that the Executing
Court has referred the said decision in the impugned
judgement and accordingly awarded the interest.
10.3 Lastly, in the case of P. Shyamala (supra), as can be
seen from the facts of that case, recorded in para-2.1 by the
Hon’ble Apex Court that in the decree itself, the plaintiff was
directed to deposit the amount within stipulated time and it
appears that he failed to deposit such amount, which is not
the case at hand.
11. At this juncture, I refer to and rely upon the recent
decision of the Hon’ble Apex Court in the case of Anand
Narayan Shukla Vs. Jagat Dhari reported in 2026 LiveLaw
(SC) 477 : 2026 IN SC 463, wherein the Hon’ble Apex Court
has, after revisiting the previous case law and the principles
enunciated regarding the application filed under Section 28 of
the Act, 1963, held thus:
“33. Upon consideration of the provisions of Section 28 of the 1963
Act as also the decisions noticed above, in our view, the legal
principles, inter alia, guiding the exercise of power under Section
28 of the 1963 Act could be summarized as under:
(i) A decree for specific performance of a contract is in the nature
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pursuant to the decree, the Court that passed the decree is vested
with the jurisdiction to either rescind the contract / the decree for
non-payment/non-deposit within the stipulated period or extend the
period for making such payment/ deposit.
(ii) Neither there is an automatic rescission of the contract/ decree
for non-payment/ non-deposit within the period stipulated by the
decree, nor there is an automatic extension of time by making such
deposit, if the stipulated period for payment/ deposit has expired.
However, where the decree stipulates that on failure to pay /
deposit within the specified period, the decree shall stand rescinded
or the suit shall stand dismissed, the decree is rendered
inexecutable on failure to pay/ deposit [P.R. Yelumalai v. N.H.
Ravi, (2015) 9 SCC 52].
(iii) Prayer to extend the time for making deposit in compliance of
the conditions stipulated in the decree may be made prior to, or
even after, expiry of the period stipulated therefor [Johri Singh v.
Sukhpal Singh and others, (1989) 4 SCC 403].
(iv) There is no form prescribed for making the prayer to extend the
time to make such payment or deposit. Therefore, the prayer
seeking permission to deposit the defaulted amount may be treated
as one for extension of time to deposit. Such prayer may be made
even orally while the Court seeks to address an application for
rescission of the contract/ decree or when the decree is put for
execution, provided the execution court is the one which passed the
decree. However, if the decree is passed by the appellate court,
such prayer/ application may be made before the court of first
instance having regard to the provisions of Section 37 of CPC.
Further, what is important is that such an application must be
treated as an application in the suit and numbered accordingly.
(v) As specific performance of a contract is an equitable relief,
while considering the prayer for rescission of the contract/ decree,
or for extension of time to make deposit in compliance of the
decree, the Court must be guided by principles of equity. Therefore,
while considering the prayer for extension of time to make deposit,
to balance the equities, the Court would have to consider the
attending facts and circumstances of the case, the conduct of the
parties and whether, by putting the decree holder to such
additional terms and conditions, the judgment debtor could be
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adequately compensated for the delay.
(vi) Though each day’s delay in deposit need not be explained as in
an application under Section 5 of the Limitation Act, the test is
whether from the conduct of the decree holder it could be logically
inferred that he had no intention to complete his part of the
contract. If it appears so, and there appears an element of willful
negligence on the part of the decree holder in complying with the
terms of the decree, the Court may invoke its power under Section
28 and rescind the contract.
(vii) Under Order XX Rule 12 A of CPC, when a decree for specific
performance of a contract for the sale, or lease of immovable
property, orders that the purchase-money or other sum is to be
paid by the purchaser or lessee, the Court must specify the period
within which the payment shall be made. Therefore, where the suit
for specific performance is dismissed by the trial court but decreed
by the appellate court, or where the appeal against the decree for
specific performance is dismissed on merits, the Court must fix the
time within which such payment is to be made. If no time limit is
fixed, the compliance thereof would have to be within a reasonable
period. As to what would be the reasonable period would depend
on facts of the case.”
(Emphasis supplied)
12. The law, which stands as on date, if it applies to the facts
of the case, the Court needs to see as to whether any
intentional delay on the part of the decree-holder in not
depositing the decretal amount or not, as decree granting
specific performance is an equitable relief. It has been so held
that in a case where there is an element of willful negligence
on the part of the decree holder in complying the terms of the
decree, the Court may invoke its powers under Section 28 of
the Act, 1963 and rescind the contract.
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12.1 No such case is made out by the defendants in the
impugned application, inasmuch as there is no willful
negligence on the part of the plaintiff – decree holder in
complying with the condition of the decree and or an
intentional delay in deposit; rather as observed above, the
defendants did not get their suit land measured, which
ultimately resulted into delay in depositing the decretal
amount. Moreover, they have been compensated by Executing
Court by directing the plaintiff to pay the principal amount
with 9% interest, whereby no fault can be found with the
Executing Court.
13. Thus, considering the aforesaid facts and circumstances
and applying ratio of the case of Anand Narayan Shukla
(supra), I am of the considered view that impugned order
neither suffers from any irregularity and / or illegality and as
such, the impugned order was not passed dehors the settled
position of law.
14. I would like to observe that this Court, while exercising
its powers under Article 227 of the Constitution of India,
cannot and should not interfere with the order passed by the
Courts below merely because some another view is possible. It
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is settled that unless any gross error of law committed or
finding is so perverse or any egregious error committed by the
Court below while passing order, this Court should refrain
itself from interfering with such order merely some error of
law committed. No such error is found in the order impugned
in this petition.
14.1 It would apt to refer the decision of the Hon’ble Apex
Court in the case of Surya Dev Rai v. Ram Chander Rai
reported in (2003) 6 SCC 675, wherein held thus:
“22. Article 227 of the Constitution confers on every High
Court the power of superintendence over all courts and
tribunals throughout the territories in relation to which it
exercises jurisdiction excepting any court or tribunal
constituted by or under any law relating to the armed
forces. Without prejudice to the generality of such power
the High Court has been conferred with certain specific
powers by clauses (2) and (3) of Article 227 with which we
are not concerned hereat. It is well settled that the power
of superintendence so conferred on the High Court is
administrative as well as judicial, and is capable of being
invoked at the instance of any person aggrieved or may
even be exercised suo motu. The paramount consideration
behind vesting such wide power of superintendence in the
High Court is paving the path of justice and removing any
obstacles therein. The power under Article 227 is wider
than the one conferred on the High Court by Article 226 in
the sense that the power of superintendence is not subject
to those technicalities of procedure or traditional fetters
which are to be found in certiorari jurisdiction. Else the
parameters invoking the exercise of power are almost
similar.
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38. Such like matters frequently arise before the High
Courts. We sum up our conclusions in a nutshell, even at
the risk of repetition and state the same as hereunder:
(1) Amendment by Act 46 of 1999 with effect from 1-7-
2002 in Section 115 of the Code of Civil Procedure cannot
and does not affect 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 CPC Amendment Act 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 correcting 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 overstepping
or crossing the limits of jurisdiction, or (iii) acting in
flagrant disregard of law or the rules of procedure or
acting in violation of principles of natural justice where
there is no procedure specified, 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 their jurisdiction. When a
subordinate court has assumed a jurisdiction which it does
not have or has failed to exercise a jurisdiction which it
does have or the jurisdiction though available is being
exercised 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
jurisdiction, none is available to correct mere errors of
fact or of law unless the following requirements are
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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 jurisdiction 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 pendency of any suit or proceedings in a subordinate
court and the error though calling for correction is yet
capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred
thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the 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 corrected at
that very moment, may become incapable of correction at
a later stage and refusal to intervene would result in
travesty of justice or where such refusal itself would result
in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory
jurisdiction will not convert itself into a court of appeal
and indulge in reappreciation or evaluation of evidence or
correct errors in drawing inferences or correct errors of
mere formal or technical character.
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(9) In practice, the parameters for exercising jurisdiction
to issue a writ of certiorari and those calling for exercise
of supervisory jurisdiction are almost similar and the width
of jurisdiction exercised by the High Courts in India unlike
English courts has almost obliterated 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.”
(Emphasis supplied)
14.2 It would also be apt to refer the decision of the Hon’ble
Apex Court in the case of M/s Garment Craft v. Prakash
Chand Goel, reported in (2022) 4 SCC 181 (Para 15 and
16)], whereby the Hon’ble Apex Court held as under:-
“15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order [Prakash
Chand Goel v. Garment Craft, 2019 SCC OnLine Del
11943] is contrary to law and cannot be sustained for
several reasons, but primarily for deviation from the
limited jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction 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
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substitute its own decision on facts and conclusion, for
that of the inferior court or tribunal. [Celina Coelho
Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC
217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is
in the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of
fundamental principles 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 examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority 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 unlimited
prerogative to correct all kinds of hardship or wrong
decisions 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 injustice remains uncorrected. It is
also well settled that the High Court while acting
under this Article cannot exercise its power as an
appellate court or substitute its own judgment in
place of that of the subordinate court to correct an
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error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings 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 person can possibly come to such a
conclusion, which the court or tribunal has come to.”
(Emphasis supplied)
15. Since this Court is not inclined to interfere with the
impugned order, if the execution of the sale deed is still
pending for any reason, the Executing Court shall see to it
that same shall be executed at the earliest and execution
petition shall be disposed of at the earliest. (See:-
Periyammal (Dead) Through Lrs Vs. V Rajamani reported
in 2025 (9) SCC 568).
16. At this stage, Mr. Jani, learned advocate for the
petitioner, would request this court that liberty may be
granted in favour of the petitioner to move an appropriate
application seeking relief to get interest from 08.02.2018 until
the date of actual deposit, as according to him, as per the
decision of the Hon’ble Apex Court in the case of Ram Lal
(supra), the petitioner is entitled to receive interest until the
actual amount is deposited.
16.1 Since the petitioners are not inviting any reasons from
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this Court on the issue of period of interest, liberty is reserved
in favour of the petitioner to file an appropriate application
seeking appropriate reliefs as regards to receive interest from
08.02.2018 until the date of actual deposit. At this stage, I am
not expressing my opinion on this issue. The Executing Court
may examine the aforesaid issue after hearing the parties.
CONCLUSION:-
17. In view of the foregoing reasons, I do not find any merit
in this petition which requires to be dismissed. Accordingly, it
is hereby dismissed with no order as to costs.
Sd/-
(MAULIK J.SHELAT,J)
Lalji Desai
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