JUDGMENT : ORDER IN SPECIAL CIVIL APPLICATION NO. 16393 of 2017 1. Rule returnable forthwith. Learned advocate Mr. Vijay Patel waives service of notice of rule for and on behalf of respondent No.1. 2. By way of present petition, present petitioners, who are the objectors in Special Civil Execution Petition No.13 of 2014, have challenged the order dated 25.07.2017 passed below Exh.68 by learned 7th Additional Senior Civil Judge, Rajkot directing the petitioners to deposit balance amount of Rs.14,00,000/- (Rs. Fourteen Lakhs) before the Executing Court. 3. Short facts of the present case may be summarized as under: Mr.Dilipbhai Damodardas Gorasiya along with his brothers namely (1) Kiritkumar Damodardas Gorasiya, (2) Narendrakumar Damodardas Gorasiya and (3) Dhirendrakumar Damodardas Gorasiya agreed to sell the land admeasuring 391.30 sq. mtrs of City Survey No.3309 of City Survey Ward No.6 with construction thereon (hereinafter would be referred to as “said property”) to the petitioners vide registered agreement to sell dated 09.11.2005 bearing Serial No.5929. Part payment of Rs.10,51,000/- was paid by the petitioners. The sellers of the said property failed to perform the said agreement and petitioners filed Special Civil Suit No. 156 of 2008 before the Civil Court, Rajkot for specific performance of the said agreement. Along with the suit, petitioners also filed one application for temporary injunction in the said suit, which was allowed by the trial court vide order dated 11.05.2009 restraining the original defendants from transferring or alienating the said property to anyone by any way till final disposal of the suit. The respondent No.1 filed Special Execution Petition No.13 of 2014 before the trial court to execute the decree passed in Special Civil Suit No.15 of 2006 against the respondent No.2, legal heirs of the deceased Mr.Dilipbhai Damodardas Gorasiya under Order 21 Rule 54 of the Civil Procedure Code. As per the execution petition preferred by the respondent No.1, judgment and decree was passed in his favour on 13.02.2014 and he prayed to recover an amount of Rs.11,04,671.56 paise by attaching the movable property as well as immovable property i.e. “Bharat Bhuvan”, situated at Tagore Road of Virani Chowk, Rajkot of the ownership of the deceased Mr.Dilipbhai Damodardas Gorasiya. The Executing Court on 31.01.2015 issued warrant of attachment of immovable property by passing an order below Exh.19. The Executing Court on 31.01.2015 issued warrant of attachment of immovable property by passing an order below Exh.19. The present petitioners lodged their objection by filing an application Exh.33 on 01.04.2015 before the Executing Court inter alia praying to reject the application filed under Order 21 Rule 54 of C.P.C. by the respondent No.1. They also submitted certain documents in support of their application vide Exh.34 dated 01.04.2015. The learned executing court was pleased to keep this application for hearing pursuant to an order dated 20.06.2015 and at present it is pending for adjudication before the Executing Court. The present petitioners also filed their pursis dated 13.05.2015 at Exh.41 before the Executing Court that the amount may be recovered from another immovable property of the deceased respondent No.2 i.e. Mr.Dilipbhai Damodardas Gorasiya sitauted at “Bharat Smruti” House No.8, Ramkrushna Nagar, Rajkot. During the pendency of the application Exh.33, respondent No.1 submitted one application Exh.68 inter alia praying to direct the petitioners to deposit the balance amount of consideration as per the agreement. The Executing Court was pleased to allow the application Exh.68 preferred by the respondent No.1 vide order dated 25.07.2017 directing the petitioners to deposit an amount of Rs.14,00,000/- (Rupees Fourteen Lakhs only) before the Executing Court out of the balance consideration payable under the agreement. Hence, this petition is preferred by the present petitioners under Articles 226 and 227 of the Constitution of India. 4. Heard learned advocate for the petitioners and learned advocate for the respondent No.1. Learned advocate for the petitioners submits that notice is duly served to the respondents i.e. 2.1, 2.2 and 2.3 but none was appeared for and on behalf of the respondents i.e. 2.1, 2.2 and 2.3. As none is appeared to contest this petition for and on behalf of the other respondents, it is submitted that presence of other respondents are not necessary to decide this petition. 5. It is submitted by learned advocate for the petitioners that the impugned order passed below Exh.68 dated 25.07.2017 is without any jurisdiction, illegal and improper. As none is appeared to contest this petition for and on behalf of the other respondents, it is submitted that presence of other respondents are not necessary to decide this petition. 5. It is submitted by learned advocate for the petitioners that the impugned order passed below Exh.68 dated 25.07.2017 is without any jurisdiction, illegal and improper. That the executing court overlooked the facts that petitioners have right over the said property as registered agreement to sell was executed in favour of the petitioners on 09.11.2005 to purchase the said property for which suit for specific performance was pending before the trial court and injunction was granted against the defendants including the respondent No.2 from alienating or transferring the said property. That the first application Exh.33 and objection raised by the petitioners was required to be decided on merits by the executing court. That pursis Exh.41 passed by the present petitioners declaring that respondent No.2 owns another property i.e. “Bharat Smruti” House No.8, Ramkrushna Nagar, Rajkot and decree can be executed from the amount realized by selling that property was not considered by the Executing Court. That observation of the Executing Court that respondent No.1 has charge/lien over the said property inasmuch as the register of agreement dated 09.11.2005 much prior to any order passed in Special Civil Suit No.15 of 2006 filed by the respondent No.1 against the respondent No.2 was illegal and bad in law. It is further submitted that though there was an injunction order passed in favour of the present petitioners against the respondent No.2 and his brothers in Special Civil Suit No.156 of 2008, properties in dispute cannot be put in auction by the court. That the respondent No.1 has made his attempt before the Executing Court to frustrate the registered agreement executed in favour of the present petitioners and the suit property was agreed to be sold by the respondent No.2 and his brothers to the petitioners. That Special Civil Suit No.156 of 2008 is decreed by the civil court in favour of the petitioners vide judgment and decree dated 20.09.2019. That Special Civil Suit No.156 of 2008 is decreed by the civil court in favour of the petitioners vide judgment and decree dated 20.09.2019. It is further submitted that readiness and willingness of the petitioners in the execution proceedings cannot be decided by such a way directing the petitioners to deposit the balance of amount of agreement to sell in a decree passed in another suit, and therefore, it was requested by learned advocate appearing for the petitioners to quash and set aside the order dated 25.07.2017 passed below Exh.68 by learned 7th Additional Senior Civil Judge, Rajkot in Special Civil Execution Petition No.13 of 2014 dismissing the application Exh.68 filed by the respondent No.1. In support of his arguments, learned advocate for the petitioners has relied upon the judgment of the Hon’ble Apex Court reported in (2008) 14 SCC 258 and AIR 2014 Supreme Court 1356. 6. Per contra, learned advocate for the respondent No.1 has supported findings and order passed by the Executing Court dated 25.07.2017 below Exh.68 and submitted that there is no illegality or error committed by the Executing Court directing the petitioners to deposit an amount of Rs.14,00,000/- (Rupees Fourteen Lakhs only) within a period of 60 days. It is further submitted that present petitioners objected the proceedings of the execution petition preferred by the respondent No.1 and auction process of the suit property by filing their objection Exh.68. That decree was passed in favour of the respondent No.1 against the respondent No.2 in Special Civil Suit No.15 of 2006 on 13.02.2014. Referring the observation of the court in paragraph No.16 of the judgment, it is submitted that respondent No.2 has requested the court to secure his debt and sough permanent injunction restraining the defendant not to transfer the suit property i.e. “Bharat Bhuvan” or any part of the property under Order 38 Rule 5 of the Civil Procedure Code. It was accepted by the Court and surety was given by the original defendant on 25.06.2009. There was no dispute in respect of ownership of the suit property raised by the defendant and court has observed that defendant is liable to pay the amount of the legal dues prayed by the plaintiff. It is further submitted that decree was passed in favour of the respondent No.1 by the civil court and respondent no.1 had lient over the suit property. It is further submitted that decree was passed in favour of the respondent No.1 by the civil court and respondent no.1 had lient over the suit property. The present petitioners cannot be permitted to object in the proceedings of execution filed by the respondent No.1 without paying the amount, which was to be recovered by the respondent No. It is further submitted that as per the agreement to sell executed in favour of the petitioners in the year-2005 only Rs.10,51,000/- was paid by the present petitioners and remaining amount was to be paid by the petitioners. That respondent No.1 has a lien over the suit property i.e. Bharat Bhuvan and till the amount is recovered by the respondent No.1 as prayed in the execution proceedings, his name would be continued. Hence, it was requested by learned advocate appearing for the respondent to dismiss the present petition and confirm the order dated 25.07.2017 passed below Exh.68 by learned 7th Additional Senior Civil Judge, Rajkot in Special Civil Execution Petition No.13 of 2014. 7. Having heard learned advocates for the respective parties and perused the record produced by the petitioners and gone through the contents of the respective parties, it appears that in respect of the suit property, one agreement to sell was executed by the original respondent No.2 deceased Mr.Dilipbhai Damodardas Gorasiya along with his brothers namely (1) Kiritkumar Damodardas Gorasiya, (2) Narendrakumar Damodardas Gorasiya and (3) Dhirendrakumar Damodardas Gorasiya who agreed to sell the land admeasuring 391.30 sq. mtrs of City Survey No.3309 of City Survey Ward No.6 with construction on 09.11.2005, which was a registered agreement. At the time of the execution of the agreement Rs.51,000/- was paid, and thereafter, Rs.10,00,000/- was paid by the present petitioners as the sale deed was not executed by the sellers in favour of the petitioners, Special Civil Suit No. 156 of 2008 was preferred by the present petitioners before the Civil Court, Rajkot for specific performance of the said agreement wherein application for temporary injunction was filed vide Exh.5, which was allowed by the trial court vide order dated 11.05.2009 restraining the original defendants from transferring or alienating the said property till final disposal of the suit. The respondent No.1 filed one Special Civil Suit No.15 of 2006 against the respondent No.2 namely Mr.Dilipbhai Damodardas Gorasiya to recover an amount of Rs.7,50,000/- and permanent injunction. The respondent No.1 filed one Special Civil Suit No.15 of 2006 against the respondent No.2 namely Mr.Dilipbhai Damodardas Gorasiya to recover an amount of Rs.7,50,000/- and permanent injunction. The said suit was decided in favour the respondent No.1 vide order dated 13.02.2014 wherein paragraph No.16, it was observed that to secure the debt of the plaintiff, it was prayed that the defendant may not transfer the suit property i.e. “Bharat Bhuvan” or its part situated in Virani Chowk, Tagore Marg at Rajkot owned by the defendant. Another prayer was made by the respondent No.1 in the suit under Order 38 Rule 5 of the Civil Procedure Code for attachment of the property, which was accepted by the court. On 25.06.2009, the defendant submitted the surety. As per the observation of the court, there was no dispute in respect of ownership of the property as the defendant was liable to pay the amount of legal dues prayed by the plaintiff i.e. respondent No.1. It further appears that present petitioners were never parties in Special Civil Suit No.15 of 2006 and judgment and decree was passed by the learned Senior Civil Judge, Rajkot on 13.02.2014 against the only defendant namely Mr.Dilipbhai Damodardas Gorasiya, who was one of the party in executing the registered sale deed in favour of the petitioners in addition to his other three brothers. It appears that respondent No.1 filed Special Execution Petition No.13 of 2014 for execution of the decree dated 13.02.2014 passed in Special Civil Suit No.15 of 2006 against the respondent No.2 for recovery of an amount of Rs.4,00,000/- with interest @ 21% per anuum from the date of the suit till realization of the amount. The executing court also issued warrant of attachment of immovable property vide order dated 31.01.2015 passed below Exh.19 filed by the respondent No.1. The petitioners filed their objection by filing their applications Exh.33 on 01.04.2015 inter alia praying to reject the application filed under Order 21 Rule 54 on the ground stated therein. They also submitted their documents in support of their applications by separate list. The application Exh.33 filed by the petitioners was opposed by the respondent No.1 by filing his reply dated 04.04.2015 below Exh.35, thereafter, application submitted by the petitioners Exh.33 was kept for hearing pursuant to the order dated 20.06.2015 and at present it is pending for adjudication before the executing court. The application Exh.33 filed by the petitioners was opposed by the respondent No.1 by filing his reply dated 04.04.2015 below Exh.35, thereafter, application submitted by the petitioners Exh.33 was kept for hearing pursuant to the order dated 20.06.2015 and at present it is pending for adjudication before the executing court. It also appears from the record that vide Exh.41, one pursis was passed by the present petitioners dated 13.05.2015 bringing to notice of the executing court that amount as prayed by respondent No.1 may be recovered from another immovable property of the deceased respondent No.2 i.e. Mr.Dilipbhai Damodardas Gorasiya situated at “Bharat Smruti” House No.8, Ramkrushna Nagar, Rajkot. Thereafter, respondent No.1 preferred one application Exh.68 before the executing court inter alia praying to direct the petitioners to deposit the balance amount of consideration as per the agreement. The said application Exh.68 was allowed by the executing court vide order dated 25.07.2017 directing the petitioners to deposit an amount of Rs.14,00,000/- before the executing court. It is not in dispute that Special Civil Suit No.156 of 2008 preferred by the petitioners against the respondent No.2 and his brothers namely (1) Kiritkumar Damodardas Gorasiya, (2) Narendrakumar Damodardas Gorasiya and (3) Dhirendrakumar Damodardas Gorasiya was decreed in favour of the present petitioners on 20.09.2019. The agreement to sell was executed, which was a registered document in favour of the petitioners by all the defendants in Special Civil Suit No.156 of 2008 on 09.11.2005. Subsequent suit was filed by the respondent No.1 i.e. Special Civil Suit No.15 of 2006 against Mr.Dilipbhai Damodardas Gorasiya wherein petitioners were never parties. The executing court cannot direct the present petitioners in a application submitted by the defendant No.1 to deposit balance amount of Rs.11,04,671.56 paise remained to be paid by the present petitioners to the original defendants as per the agreement to sell. The respondent No.1 can certainly execute the decree passed in his favour in Special Civil Suit No.15 of 2006 from the original defendant or legal heirs of the defendant from the immovable property or movable property as the case may be. Executing court has committed an error by directing the petitioner to deposit an amount of Rs.11,04,671.56 paise by observing that this amount was to be paid by the petitioners as per the agreement to sell executed by the original defendants in favour of the present petitioners. Executing court has committed an error by directing the petitioner to deposit an amount of Rs.11,04,671.56 paise by observing that this amount was to be paid by the petitioners as per the agreement to sell executed by the original defendants in favour of the present petitioners. Such a conditional order, according to this Court is illegal and improper. 8. In the case of Kancherla Lakshminarayana versus Mattaparthi Symala and others reported in (2008) 14 SCC 268, Hon’ble Apex Court has observed as under: "The terms of Order 21 Rule 63 are imperative and they declare that any order passed by the executing Court is subject to the result of such a suit. In Phul Kumari v. Ghanshyam Misra, Their Lordships of the Privy Council pointed out that the object of a suit under Section 283, Civil Procedure Code of 1882 which corresponds to Order 21 Rule 63 of the present Code is in effect to set aside a summary decision. When the claimant succeeds in getting a decree in his favour declaring his title to the property attached and that the property is not liable for attachment and sale in execution of a particular decree the executing court's power to sell the property in that execution proceedings must cease. The claimant's success in a suit under Order 21 Rule 63 ousts the jurisdiction of the executing court. If that is the result, the sale must be pronounced to be a nullity and consequently not capable of being confirmed under Order 21 Rule 92, Civil Procedure Code" These observations will show that the Andhra Pradesh High Court not only considered the language of Rule 59 and the impact thereof as clearly displayed but also went on to consider the fact of the prior obligation regarding the objector in the property and the fact that even if the sale is effected under Rule 58, it cannot obliterate the claims of the objectors which were created prior to the sale.” 8. In the case of Maya Devi v. Lalta Prasad reported in AIR 2014 Supreme Court 1356, Hon’ble Apex Court has observed as under: “On a conjoint reading of Order XXI Rule 58 CPC and the fasciculus of Order XXI comprising Rules 97 to 104, it becomes clear that all questions raised by the Objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the Execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order XXI proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the Court. Objection under Order XXI should be meaningfully heard so as to avoid the possibility of any miscarriage of justice.” 9. In the instant case also application submitted by the present petitioners Exh.33 is yet not decided by the executing court and application Exh.68 preferred by the respondent No.1 is allowed without deciding the objections raised by the petitioners. 10. Under the circumstances, present petition requires consideration and same is allowed. The impugned order dated 25.07.2017 passed below Exh.68 by learned 7th Additional Senior Civil Judge, Rajkot in Special Civil Execution Petition No.13 of 2014 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. 11. Executing court shall decide the application Exh.33 preferred by the present petitioners expeditiously preferably within a period of six months from the date of receipt of this order in accordance with law. COMMON ORDER IN CIVIL APPLICATION NO. 1 of 2018 AND IN CIVIL APPLICATION NO. 1 of 2019 In view of the order passed in Special Civil Application No.16393 of 2017, present applications do not survive and accordingly disposed of.