JUDGMENT : 1. The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging legality and validity of an order passed by the learned 2nd Additional Civil Judge, Surat below Exhibit-6 in Darkhast Application No.17 of 2018, dated 14.08.2019. 2. The facts, in brief, are : 2.1 The present petitioners, 8 in number, initially filed Regular Civil Suit No.369 of 2008 against the respondent seeking declaration and permanent injunction. This suit proceedings came to be disposed of by an order dated 15.05.2015 based upon the consent terms arrived at between the parties below Exhibit-57. 2.2 It is the case of the petitioners that after about more than a period of 3 and a half years, the respondent herein filed execution application bearing No.17 of 2018 before the learned Civil Judge, Surat for executing a decree dated 15.05.2015. According to the petitioners, that it is at this stage these petitioners came to know that fraud has been practiced upon them in drawing the consent terms, as a result of which the petitioners filed Regular Civil Suit No.447 of 2019 to set aside the consent terms and the order based upon it in Regular Civil Suit No.369 of 2008 by alleging the same as fraudulent. In the said Civil Suit i.e. RCS No.447 of 2019 an injunction application is submitted below Exhibit-5 in which the Court had issued notice and the said proceedings are pending. 2.3 The petitioners have further asserted that a detailed objection has been filed in the execution proceedings filed by the Respondent. But then, surprisingly an application for amending cause title, namely, to correct the suit number mentioned in Darkhast proceedings came to be filed. Though objected, the same was allowed and simultaneously, the respondent filed an application below Exhibit-6 for seeking issuance of attachment warrant in the said execution application No.17 of 2018. Here also, the detailed objection was filed but then by a brief order, Exhibit-6 application came to be allowed on 14.08.2019 which is made the subject matter of present Special Civil Application. 2.4 This Court, with the consent both the learned advocates, heard the matter finally at their request and the matter is kept for orders. By that time, the time which has been granted by the trial court vide order dated 19.08.2019 came to be extended. 2.4 This Court, with the consent both the learned advocates, heard the matter finally at their request and the matter is kept for orders. By that time, the time which has been granted by the trial court vide order dated 19.08.2019 came to be extended. With this background, the present Special Civil Application is taken up by the Court for its disposal. 3. Mr. S.P. Majmudar, learned advocate appearing for the petitioners has vehemently contended that a serious fraud is committed with the petitioners with respect to their valuable property which is under their occupation right from day one. All these petitioners are physically in possession of not only the suit land but also residing actually in their respective houses situated over the said land in question. According to Mr.Majmudar, while executing a sale document, a wrong survey number is mentioned. Not only that, there is no mention about the houses which are situated over the land. A fraudulent document is executed without their being mention about payment of consideration and instead of Survey No.194/2, reference is made about Survey No.194. So, a serious mischief is committed with the petitioners. 3.1 Mr.Majmudar, learned advocate, has further submitted that the application which has been submitted is also not in a proper format and the decree which is sought to be executed, is based upon a fraudulent compromised document. Further, the amendment which has been sought to correct the suit number is also not supported by a detailed affidavit which is otherwise a mandate of Code of Civil Procedure. Additionally, it has been further submitted that neither of the petitioners has been paid about the sale consideration proportionately. On the contrary, taking disadvantage of the petitioners’ illiteracy, some signatures have been obtained in collusion of the advocate and alleged compromise fraudulently created. By referring to the sale document attached to the petition compilation, a mention is made that there is no whisper about the residential houses are situated in which the petitioners are actually residing. The decree which has been sought to be executed is based upon a fraud practiced upon the petitioners. By referring to the sale document attached to the petition compilation, a mention is made that there is no whisper about the residential houses are situated in which the petitioners are actually residing. The decree which has been sought to be executed is based upon a fraud practiced upon the petitioners. 3.2 Mr.Majmudar, learned advocate, has further submitted that a substantive suit challenging the decree is pending for consideration and as such, issuance of attachment warrant would be infructuous to the main suit proceedings and hence, all these issues are required to be gone into by the executing court which is permissible in view of Order 21 Rule 97 of CPC. 3.3 According to Mr.Majmudar, a specific case is made out about how the fraud is committed to the petitioners and by a detailed objection on 07.08.2019, the application has been resisted. But, unfortunately, a reliance is substantively made on compromised document at Exhibit-57 and without much inquiry, by a brief order, application of respondent is allowed and as such, Mr.Majmudar has vehemently contended that this exercise of the jurisdiction of the learned Judge is suffering by the vice of non-application of mind. 3.4 Learned advocate for the petitioners has further submitted that non dealing of specific contention is also in violation of the well recognized principle of exercise of discretion and non assigning of reason, is also part and parcel of the violation of principle of natural justice. Hence, on this ground alone, the impugned order requires to be quashed and set aside. 3.5 For substantiating the submissions made by the Mr.Majmudar, learned advocate, a reference is made to some of the documents present in the record of the petition and has requested to set aside the impugned order. A further reference is made to few of the decisions which are reported in 1970 (3) SCC 181 , 1994 (1) SCC 1 and an unreported decision dated 11.04.2016 passed in Special Civil Application No.1893 of 2015. After placing reliance upon this, a request is made to set aside the impugned order and to pass an appropriate order in the interest of justice. 4. After placing reliance upon this, a request is made to set aside the impugned order and to pass an appropriate order in the interest of justice. 4. To oppose the stand taken by the petitioners, Mr.Dhaval D. Vyas, learned advocate appearing for the contesting respondent has submitted that executing court has passed an order well within the discretion vested in him and the order is based upon proper reasons and, therefore, in exercise of extraordinary jurisdiction, it may not be interfered with. It has further been submitted that the decree which has been passed in the original form is based upon a specific consent terms and such consent terms are clear enough in which these petitioners where required to handover possession within a period of 6 months from the date of execution of consent terms and by non compliance of the said terms, these petitioners have violated the terms and hence, the conduct itself is sufficient enough not to exercise extraordinary jurisdiction. 4.1 Mr.Vyas, learned advocate for the respondent has further contended that there is a specific sale document registered before the Sub-Registrar by virtue of which a legal right is crystallized in favor of the respondent and knowing fully well this position, these petitioners have requested to grant some time and accordingly, the same was deduced in writing which is produced at Exhibit-57 and, therefore, since the specific decree is based upon these very consent terms, there is hardly any leverage open for the petitioners. 4.2 It has further been contended that subsequent suit which has been filed is an afterthought move, just to evade the decree from being executed and as such, simply because a fraud is alleged, the said cannot be assumed and as such, while passing order on exhibit-6, since this point has also been considered, there is hardly any merit in the present petition. 4.3 Mr.Vyas, learned advocate, has further contended that order under challenge is well within the bounds of authority of executing court and since it is settled position of law that executing court cannot go behind the decree, no error seem to have been committed by the trial court. Hence, this meritless petition may be dismissed with appropriate cost. 4.4 Mr.Vyas has submitted that even looking to the assertions which are made to project the fraud being committed, even such averments are not cogent enough to support the theory of fraud. Hence, this meritless petition may be dismissed with appropriate cost. 4.4 Mr.Vyas has submitted that even looking to the assertions which are made to project the fraud being committed, even such averments are not cogent enough to support the theory of fraud. In any case, this is an attempt made by the petitioners to delay the proceedings and to see that somehow, a specific decree may not be executed. This attempt, on the contrary, is required to be discouraged and the petition be dismissed with cost. No other submissions have been made. 5. Having heard the learned advocates appearing for the parties and having gone through the record which has been placed before the Court, following circumstances are not possible to be unnoticed: (1) First of all, it is settled position of law that while exercising discretion, the trial court is supposed to deal with every contingence which may be raised before it. The reason being, that while examining and testing such discretion, the high forum will have an advantage of examining the order in true perspective. On such proposition, there are catena of decisions but one of such relevant decision in the case of Mayurbhai Kantibhai Gohil versus State of Gujarat reported in 2015 (1) GLR 894 , is considered by the Court while arriving at the conclusion. (2) In view of such situation, the contention which has been raised by the learned advocate for the petitioners sounds confident since a bare reading of order would clearly suggest that substantial emphasis is made on the consent terms based upon which a decree is passed, which is the centre of controversy. Further, additionally it appears from the record that there are specific issues raised not only with regard to survey number but, with regard to non existence of residential houses in the sale deed pursuant to which compromise took place at Exhibit-57, which is actually questioned by the petitioners. (3) Apart from that, a substantive civil suit also appears to have been tiled challenging the decree by alleging fraud practiced upon the petitioners and undisputedly, the said civil suit and injunction application are pending for consideration. (3) Apart from that, a substantive civil suit also appears to have been tiled challenging the decree by alleging fraud practiced upon the petitioners and undisputedly, the said civil suit and injunction application are pending for consideration. (4) One another factor which cannot be lost sight of, is that there is a specific grievance raised in objection to the application under Exhibit-6, which is visible from page-100 of the petition compilation and the points which are raised in such are not found to be adequately and properly dealt with, as can be seen from the order impugned. (5) The averments contained in the suit namely RCS No.447 of 2019 are also substantively indicating a question mark on alleged Exhibit-57 consent terms based upon which a decree is passed which is sought to be executed. (6) It further appears from the record that, Exhibit-57 deduced in writing allegedly on 15.05.2015 and decree thereafter is passed on 15.05.2015 itself, still execution proceedings appear to have been submitted only in October 2018, after quite some time. Though handing over of possession was prescribed as 6 months in the said consent terms and for this, there appears to be conspicuous silence of the respondent. (7) Now, coming to the perusal of the entire sale deed, there appears to be no reference of residential houses in which petitioners are actually residing. Additionally, it also appears that after submitting Darkhast Proceedings, vide Exhibit-12, a suit number is sought to be corrected, thereto after about 7 months. Though, the trial court permitted the same and the petitioners appear to have not assailed the same. However, be that as it may, there are aforementioned circumstances which appear to have been specifically agitated but, not considered by the trial court while passing the order on Exhibit-6, dated 14.8.2019. 6. In considered opinion of this Court, when a serious question of fraud and the attendant circumstances have been posed before the Court, it was incumbent on the part of trial court to at least examine and deal with the same. Having not done so, it appears that trial court has failed to exercise the discretion vested in it. It may be possible that the petitioners' intention might be to thwart the execution of decree but the same conduct ought to have been examined in the light of aforesaid issues raised before the trial court. 7. Having not done so, it appears that trial court has failed to exercise the discretion vested in it. It may be possible that the petitioners' intention might be to thwart the execution of decree but the same conduct ought to have been examined in the light of aforesaid issues raised before the trial court. 7. So, keeping in view the aforesaid circumstances in mind, it appears that there is some force in the submission made by the learned advocate for the petitioners and the reliance which has been placed on few of the decisions cited would be an assistance to the petitioners’ stance. The judgments which have been cited precisely, whereby a judgment which has been delivered by the Apex Court in the case of Commissioner of Income Tax-I versus Rashtradoot (HUF) reported in (2019) 5 SCC 149 , will have an assistance to the case made out by the petitioners. Accordingly, the Court finds that petitioners have made out a case prima facie which requires the trial court to deal with all such issues at length while passing a fresh order since impugned order appears to be unsustainable in the eye of law. 8. The objections raised during execution proceedings how to be dealt with is in detail, stipulated in order 21 of Code of Civil Procedure. Since the principle is vogue it need not to be spelt out at length and the Court is clear on the issue that while passing the impugned order, all the questions and the contentions which have been raised have not been properly gone into. As a result of which, the impugned order is unsustainable in the eye of law. 9. Since, this Court is of the opinion that the matter is required to be dealt with by the trial court afresh and to pass a fresh order on Exhibit-6 after dealing with all contentions, the Court has desisted giving any opinion on merit and leaving for the Court concerned to deal with and decide and decide in accordance with law and afresh, of course without being influenced by the observations made in the impugned order which is to be set aside. This Court is also not opining that trial court while examining the Exhibit-6 afresh and decide the same in accordance with law, should ignore the peripheral limits of executing court but is inclined to remand back the matter for fresh consideration on the limited issue that all submissions and contentions have not been dealt with. Hence, the case appears to have been made out at least for remand of the proceedings. 10. In view of aforesaid situation prevailing on record, the submissions which have been made by Mr.Vyas for contesting respondent are not possible to be accepted since apparently the discretion which has been exercised by the trial court is not property found to have been exercised. However, this Court is making it clear that it will be open for the respondent to raise all permissible contentions at the time when fresh consideration of Exhibit-6 takes place. Additionally, the contention with regard to limit of exercise of extraordinary jurisdiction in peculiar background of this case is not possible to be accepted. Hence, all the submissions made by the learned advocate for respondent have not impressed this Court when it is apparently found that the impugned order is laconic and not supported by cogent reasons, particularly when the matter deserves to be remanded back for fresh consideration. The Court is not expressing any opinion on merit on stand of both the sides, leaving it open for both the sides to reagitate the issue. 11. This Court while coming to this conclusion, is quite alive to this proposition that if there is a conflict between substantial justice and technical consideration, the substantial justice must be given predominance and further when justice is at stake, procedural technicalities may not be given that much consideration as has been held by a series of decisions. The Apex Court has in case of Banwari Lal (Dead) by Legal Representative & Anr. v. Balbir Singh reported in (2016) 1 SCC 607 , held in para 9 and 10 held as under : “9. Provisions of Order XXII, CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. v. Balbir Singh reported in (2016) 1 SCC 607 , held in para 9 and 10 held as under : “9. Provisions of Order XXII, CPC are not penal in nature. It is a rule of procedure and substantial rights of the parties cannot be defeated by pedantic approach by observing strict adherence to the procedural aspects of law. In Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272 : ( AIR 2003 SC 2588 ), a Five Judge Bench of this Court held as under: "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22, CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination in an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in the jamabandi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of the Court to do real, effective and substantial justice..." (emphasis supplied) 10. In Sital Prasad Saxena (D) by LRs. v. Union of India and Ors., (1985) 1 SCC 163 : ( AIR 1985 SC 1 ), it was observed that the rules of procedure under Order XXII, CPC are designed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties. On sufficient cause, delay in bringing the legal representatives of the deceased party on record should be condoned. Procedure is meant only to facilitate the administration of justice and not to defeat the same. The dismissal of the second appeal by the High Court does not constitute a sound and reasonable exercise of its powers and the impugned order cannot be sustained.” 12. In view of aforesaid situation prevailing on record, the present petition deserves to be disposed of, with following observations and directions which will meet ends of justice. (1) The impugned order dated 14.03.2019 passed below Exhibit-6 by the learned 2nd Additional Senior Civil Judge, Surat in Darkhast Application No.17 of 2018 is hereby quashed and set aside and a consequence thereof, the trial court concerned is directed to decide Exhibit-6 application afresh in accordance with law, after dealing with all submissions and shall pass a fresh order after assigning proper reasons. (2) Since the decree is of 2015 and keeping in view the circumstances prevailing on record, the trial court concerned shall make an endeavour to see that said fresh consideration of Exhibit-6 and decision thereon be taken within a period of 3 months from the date of receipt of the writ of this Court. (3) Both the parties are directed to cooperate with hearing of Exhibit-6 application and shall not take unnecessary adjournments so as to enable the learned Judge to take suitable decision in aforesaid time schedule. (3) Both the parties are directed to cooperate with hearing of Exhibit-6 application and shall not take unnecessary adjournments so as to enable the learned Judge to take suitable decision in aforesaid time schedule. (4) Since the decision is to be taken afresh, this Court has not expressed any opinion on merit at stance of either side and has left it open for the trial Judge to independently decide afresh Application Exhibit-6 on its own merit. (5) Till such exercise is undertaken by the court concerned, the petitioners are directed (judgment debtors) not to make any change in the property nor make any attempt to alienate the same or to create a third party interest and shall not make any further construction over the suit property to change the identity of the same. This condition which is attached in order dated 19.08.2019 reflecting on page-82 and 83 shall continue to operate till Exhibit 6 gets decided afresh. 13. With these observations and directions, this petition is partly allowed with no order as to costs.