SCA/10850/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10850 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= MANIBHADRA FIN TRADE SERVICES THROUGH AUTHORIZED PERSON - Petitioner(s) Versus SANAND TEXTILE INDUSTRIES LTD & 2 - Respondent(s) ========================================================= Appearance : MR RS SANJANWALA for Petitioner. NOTICE UNSERVED for Respondent No. : 1, MR MIHIR JOSHI, SR.ADVOCATE WITH MR DC SEJPAL for Respondent No.: 2, MR SS PANESAR for Respondent No. : 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 06/10/2008 ORAL JUDGMENT 1. Rule. Shri D.C.Sejpal, learned advocate waives service of notice of Rule on behalf of respondent SCA/10850/2008 2/5 JUDGMENT No.2 and Shri S.S.Panesar, learned advocate waives service of notice of Rule on behalf of respondent No.3. Service of notice of rule upon the respondent No.1 is not required at this stage considering the prayer in the petition. With the consent of learned advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner-third party purchaser of the property in question has prayed for an appropriate writ, order or direction, quashing and setting aside the order passed by the learned Executing Court dated 2.2.2008 passed below Exh.26 in Special Execution Application No.103 of 2004 by which the learned Executing Court has dismissed the application submitted by the petitioner to be joined as party respondent in the said execution petition. 3. Shri Sanjanwala, learned advocate appearing on behalf of the petitioner has submitted that the petitioner has purchased the property in question for SCA/10850/2008 3/5 JUDGMENT which the execution petition has been filed in an auction under the Securitisation Act and the said property is sought to be executed in the execution petition and in the aforesaid execution petition the learned Executing Court passed an order directing the parties to maintain status-quo, and therefore as the petitioner was aggrieved, the petitioner submitted an application Exh.26 to join him as party to the said execution petition as he would be directly affected parties. It is submitted that however the learned trial court without assigning any reasons and by non- speaking order has dismissed the said application. It is submitted that even otherwise looking to the tenor of the application Exh.26, it could have been considered as an objection by third party in the execution proceedings. 4. Shri Mihir Joshi, learned Senior Advocate appearing for respondent No.2-original decree holder has submitted that, in an execution petition, such an application for joining party was not maintainable. It is submitted that if the petitioner is of the opinion that he can submit the objection to the SCA/10850/2008 4/5 JUDGMENT attachment, in that case, a substantive application under Order 21 Rule 58 of the CPC can be made, but such an application below Exh.26 cannot be termed as objection against the attachment. 5. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned order passed by the learned Executing Court dated 2.2.2008 passed below Exh.26 in Special Execution Application No.103 of 2004, it appears to the Court that the same is absolutely non-speaking order except submitting that he has heard the arguments on behalf of the parties and that he is not agreeable to the arguments submitting on behalf of the applicant. Observing the same, the learned Executing Court has dismissed the said application. Nothing has been stated by the learned Executing Court on merits and/or whether such an application by the petitioner is maintainable or not. As held by the Hon'ble Supreme Court in catena of decisions that non-speaking and unreason order can be said to be an order without applying the mind. Under the circumstances and without expressing any opinion on SCA/10850/2008 5/5 JUDGMENT merits of the case, the impugned order passed by the learned trial court deserves to be quashed and set aside and the same is required to be remanded to the learned trial court for deciding the same afresh in accordance with law and on merits. 6. For the reasons stated above, the petition succeeds. The impugned order passed by the learned Executing Court dated 2.2.2008 passed below Exh.26 in Special Execution Application No.103 of 2004 is hereby quashed and set aside and the matter is remanded to the learned Executing Court for deciding the application Exh.26 afresh in accordance with law and on merits after giving an opportunity to all concerned and by speaking and reasoned order the same shall be done within a period of six weeks from this order. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/