1 Ld IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 1595 OF 2006 SUMMONS NO. 1595 OF 2006 SUMMONS NO. 1595 OF 2006 IN IN IN EXECUTION EXECUTION EXECUTION APPLN APPLN APPLN NO.619 OF 2005 NO.619 OF 2005 NO.619 OF 2005 IN IN IN SUMMARY SUMMARY SUMMARY SUIT SUIT SUIT NO.1523 OF 2002 NO.1523 OF 2002 NO.1523 OF 2002 Ashish Ashish Ashish K.Thakur K.Thakur K.Thakur .... .... .... Plaintiff Plaintiff Plaintiff vs vs vs R.C.H.Barar R.C.H.Barar R.C.H.Barar Trading & Co & anr.Judg.Debtors Trading & Co & anr.Judg.Debtors Trading & Co & anr.Judg.Debtors Mr.Kirti Mr.Kirti Mr.Kirti Munshi a/w Ms.Deepali Thakor i/b Rustamji Munshi a/w Ms.Deepali Thakor i/b Rustamji Munshi a/w Ms.Deepali Thakor i/b Rustamji & Ginwala Ginwala Ginwala for Jud.Debtrs for Jud.Debtrs for Jud.Debtrs Mr.Sanjay Mr.Sanjay Mr.Sanjay Jain Jain Jain i.b Ranjit & Co for Dec.holder i.b Ranjit & Co for Dec.holder i.b Ranjit & Co for Dec.holder CORAM CORAM CORAM : : : SMT R.S.DALVI, J SMT R.S.DALVI, J SMT R.S.DALVI, J DATE DATE DATE : : : 16th January, 2007 16th January, 2007 16th January, 2007 P.C. P.C. P.C. 1.1.1. This Chamber Summons taken out in execution of This Chamber Summons taken out in execution of This Chamber Summons taken out in execution of the the the exparte exparte exparte decree obtained by the plaintiff is for decree obtained by the plaintiff is for decree obtained by the plaintiff is for leave leave leave under Order 21 Rule 22 of the C.P.C. and under Order 21 Rule 22 of the C.P.C. and under Order 21 Rule 22 of the C.P.C. and other other other reliefs relating to the modes of execution of reliefs relating to the modes of execution of reliefs relating to the modes of execution of that that that decree. decree. decree. 2.2.2. The plaintiff has applied for and has obtained The plaintiff has applied for and has obtained The plaintiff has applied for and has obtained interim interim interim relief of status quo with regard to one of relief of status quo with regard to one of relief of status quo with regard to one of the the the properties being property no.2 mentioned in the properties being property no.2 mentioned in the properties being property no.2 mentioned in the show show show cause notice to the Chamber Summons. cause notice to the Chamber Summons. cause notice to the Chamber Summons. 3.3.3. Notice under Order 21 Rule 22 of C.P.C as per Notice under Order 21 Rule 22 of C.P.C as per Notice under Order 21 Rule 22 of C.P.C as per 2 form form form no.49 of the appendix to High Court Rules has no.49 of the appendix to High Court Rules has no.49 of the appendix to High Court Rules has not not not been seperately taken out. Chamber Summons is been seperately taken out. Chamber Summons is been seperately taken out. Chamber Summons is served served served upon the defendants. They have been heard upon the defendants. They have been heard upon the defendants. They have been heard atatat ad interim stage. Chamber Summons constitutes ad interim stage. Chamber Summons constitutes ad interim stage. Chamber Summons constitutes notice notice notice of the reliefs applied for by the plaintiff of the reliefs applied for by the plaintiff of the reliefs applied for by the plaintiff inin in this Chamber summons to the defendants. In the this Chamber summons to the defendants. In the this Chamber summons to the defendants. In the ad ad ad interim order passed on 19th December 2006 interim order passed on 19th December 2006 interim order passed on 19th December 2006 defendants defendants defendants were directed to maintain status quo in were directed to maintain status quo in were directed to maintain status quo in respect respect respect of preperty no.2 mentioned in the schedule of preperty no.2 mentioned in the schedule of preperty no.2 mentioned in the schedule toto to Chamber Summons. Chamber Summons has been Chamber Summons. Chamber Summons has been Chamber Summons. Chamber Summons has been adjourned adjourned adjourned for consideration on merits. for consideration on merits. for consideration on merits. 4.4.4. The consideration on merits itself contemplates The consideration on merits itself contemplates The consideration on merits itself contemplates that that that notice to the defendants is given which is a notice to the defendants is given which is a notice to the defendants is given which is a show show show cause notice and defendants would be heard on cause notice and defendants would be heard on cause notice and defendants would be heard on merits merits merits as to why they would want to challenge as to why they would want to challenge as to why they would want to challenge execution execution execution levied by the plaintiff more than two levied by the plaintiff more than two levied by the plaintiff more than two years years years after the exparte decree is passed. after the exparte decree is passed. after the exparte decree is passed. 5.5.5. It is however, contended on behalf of the It is however, contended on behalf of the It is however, contended on behalf of the defendants defendants defendants that since notice in proper form is not that since notice in proper form is not that since notice in proper form is not served, served, served, notice under Order 21 Rule 22 of C.P.C. notice under Order 21 Rule 22 of C.P.C. notice under Order 21 Rule 22 of C.P.C. must must must be taken not to be given. That notice is be taken not to be given. That notice is be taken not to be given. That notice is mandatorily mandatorily mandatorily required to be given. That not been required to be given. That not been required to be given. That not been given, given, given, the Chamber Summons is not maintainable. the Chamber Summons is not maintainable. the Chamber Summons is not maintainable. 3 6.6.6. The defendants have relied upon various The defendants have relied upon various The defendants have relied upon various judgments judgments judgments of this court as well as other courts to of this court as well as other courts to of this court as well as other courts to this this this end. end. end. 7.7.7. In the case of Laxman Bala Surve vs M/s Posh In the case of Laxman Bala Surve vs M/s Posh In the case of Laxman Bala Surve vs M/s Posh Builders Builders Builders 1996 (2) MLJ 858, 1996 (2) MLJ 858, 1996 (2) MLJ 858, the Division Bench the Division Bench the Division Bench this this this High court while holding that notice under High court while holding that notice under High court while holding that notice under Order Order Order 21 Rule 22 of C.P.C. is mandatorily tobe 21 Rule 22 of C.P.C. is mandatorily tobe 21 Rule 22 of C.P.C. is mandatorily tobe given, given, given, observed the object of that rule. The observed the object of that rule. The observed the object of that rule. The object object object of the notice is to furnish an opportunity of the notice is to furnish an opportunity of the notice is to furnish an opportunity toto to the the the persons concerned to urge any objection that persons concerned to urge any objection that persons concerned to urge any objection that he he he may have to the maintainability of the may have to the maintainability of the may have to the maintainability of the execution. execution. execution. After that is done that person would be After that is done that person would be After that is done that person would be bound bound bound by the order and cannot go behind it. It by the order and cannot go behind it. It by the order and cannot go behind it. It would would would therefore therefore therefore operate as constructive resjudicata operate as constructive resjudicata operate as constructive resjudicata and and and it would not be open for him to raise the it would not be open for him to raise the it would not be open for him to raise the objection objection objection to the ex parte decree at a later stage. to the ex parte decree at a later stage. to the ex parte decree at a later stage. ItItIt is clarified in that judgement that those is clarified in that judgement that those is clarified in that judgement that those objections objections objections are with regard to the execution of the are with regard to the execution of the are with regard to the execution of the decree decree decree and not with regard to its validity, since and not with regard to its validity, since and not with regard to its validity, since the the the executing court cannot go behind the decree. executing court cannot go behind the decree. executing court cannot go behind the decree. 8.8.8. What must therefore be borne in mind is the What must therefore be borne in mind is the What must therefore be borne in mind is the object object object of of of the notice. The defendants must be given the notice. The defendants must be given the notice. The defendants must be given an an an opportunity to state how and why the decree opportunity to state how and why the decree opportunity to state how and why the decree which which which is sought to be executed cannot be executed is sought to be executed cannot be executed is sought to be executed cannot be executed 4 inin in the modes preferred by the plaintiff. That the modes preferred by the plaintiff. That the modes preferred by the plaintiff. That opportunity opportunity opportunity has been given to the defendants by has been given to the defendants by has been given to the defendants by service service service of this Chamber summons. of this Chamber summons. of this Chamber summons. 9.9.9. In Chamber Summons No. 812 of 2003, in In Chamber Summons No. 812 of 2003, in In Chamber Summons No. 812 of 2003, in Execution Execution Execution Application No. 128 of 2003, learned Application No. 128 of 2003, learned Application No. 128 of 2003, learned single single single Judge of this court, whilst considering the Judge of this court, whilst considering the Judge of this court, whilst considering the preliminary preliminary preliminary objections objections objections raised in Chamber summons of raised in Chamber summons of raised in Chamber summons of this this this kind kind kind considered the cases in which such leave considered the cases in which such leave considered the cases in which such leave isisis necessary. That was the case of execution necessary. That was the case of execution necessary. That was the case of execution against against against heirs of the deceased defendants. In para heirs of the deceased defendants. In para heirs of the deceased defendants. In para 5 of of of that order it has been held, after setting out that order it has been held, after setting out that order it has been held, after setting out the the the entire Order 21 Rule 22 of C.P.C,. including entire Order 21 Rule 22 of C.P.C,. including entire Order 21 Rule 22 of C.P.C,. including sub sub sub rule 3 incorporated as Bombay Amendment to rule 3 incorporated as Bombay Amendment to rule 3 incorporated as Bombay Amendment to C.P.C,. C.P.C,. C.P.C,. that leave under Rule 22 was a must when that leave under Rule 22 was a must when that leave under Rule 22 was a must when legal legal legal representatives of the parties are being representatives of the parties are being representatives of the parties are being executed executed executed against. That was because they would be against. That was because they would be against. That was because they would be put put put to prejudice if leave was not taken before to prejudice if leave was not taken before to prejudice if leave was not taken before resorting resorting resorting to Order 21 Rule 37 of C.P.C. for to Order 21 Rule 37 of C.P.C. for to Order 21 Rule 37 of C.P.C. for executing executing executing the decree by committing them to civil the decree by committing them to civil the decree by committing them to civil prison. prison. prison. Even in that order object of Order 21 Rule Even in that order object of Order 21 Rule Even in that order object of Order 21 Rule 22 22 22 C.P.C. has been laid down which is to avoid C.P.C. has been laid down which is to avoid C.P.C. has been laid down which is to avoid prejudice prejudice prejudice to the legal heirs of the deceased to the legal heirs of the deceased to the legal heirs of the deceased judgment judgment judgment debtor. I am shown that the judgment is debtor. I am shown that the judgment is debtor. I am shown that the judgment is upheld upheld upheld in appeal. In para 3 of the judgment in in appeal. In para 3 of the judgment in in appeal. In para 3 of the judgment in appeal, appeal, appeal, same object for grant of leave under Order same object for grant of leave under Order same object for grant of leave under Order 21 21 21 Rule 22 of C.P.C. has been specified. In fact Rule 22 of C.P.C. has been specified. In fact Rule 22 of C.P.C. has been specified. In fact 5 inin in the same para the mandatory requirement that is the same para the mandatory requirement that is the same para the mandatory requirement that is observed observed observed is with regard to the provision of Order is with regard to the provision of Order is with regard to the provision of Order 21 21 21 Rule 50 (2) of C.P.C. Rule 50 (2) of C.P.C. Rule 50 (2) of C.P.C. 10. 10. 10. In an earlier decision of this Court in the In an earlier decision of this Court in the In an earlier decision of this Court in the case case case of M/s Bhurmal Kapurchand & Co vs M/s Premier of M/s Bhurmal Kapurchand & Co vs M/s Premier of M/s Bhurmal Kapurchand & Co vs M/s Premier Machine Machine Machine Tools Co.AIR 1977 BOMBAY 305 the learned Tools Co.AIR 1977 BOMBAY 305 the learned Tools Co.AIR 1977 BOMBAY 305 the learned single single single judge held that this notice was mandatory judge held that this notice was mandatory judge held that this notice was mandatory and and and issuance of a insolvency notice was to circuit issuance of a insolvency notice was to circuit issuance of a insolvency notice was to circuit the the the procedure without obtaining leave under Order procedure without obtaining leave under Order procedure without obtaining leave under Order 21 21 21 Rule 22 of C.P.C. which could not be permitted. Rule 22 of C.P.C. which could not be permitted. Rule 22 of C.P.C. which could not be permitted. 11. 11. 11. In the case of Gaurilal vs Smt Sujham Devi AIR In the case of Gaurilal vs Smt Sujham Devi AIR In the case of Gaurilal vs Smt Sujham Devi AIR 1986 1986 1986 HP 3 requirement of the executing court to HP 3 requirement of the executing court to HP 3 requirement of the executing court to issue issue issue show cause notice before issuing the warrant show cause notice before issuing the warrant show cause notice before issuing the warrant for for for possession has been laid down in cases where possession has been laid down in cases where possession has been laid down in cases where the the the execution execution execution is not levied for more than two years is not levied for more than two years is not levied for more than two years since since since passing of the decree. A reading of the passing of the decree. A reading of the passing of the decree. A reading of the judgment judgment judgment shows shows shows that the judgment debtor is required that the judgment debtor is required that the judgment debtor is required toto to be be be served by issue of a notice showing the modes served by issue of a notice showing the modes served by issue of a notice showing the modes for for for execution so that he has an opportunity to execution so that he has an opportunity to execution so that he has an opportunity to state state state why why why and under which circumstances the mode of and under which circumstances the mode of and under which circumstances the mode of execution execution execution opted by the decree holder against him opted by the decree holder against him opted by the decree holder against him cannot cannot cannot and should not be effected. and should not be effected. and should not be effected. 12. 12. 12. That purpose is amply served by service of That purpose is amply served by service of That purpose is amply served by service of this this this Chamber Chamber Chamber Summons. The judgment debtor has been Summons. The judgment debtor has been Summons. The judgment debtor has been 6 heard heard heard on merits at ad interim stage itself. At the on merits at ad interim stage itself. At the on merits at ad interim stage itself. At the very very very inception, the judgment debtor has mentioned inception, the judgment debtor has mentioned inception, the judgment debtor has mentioned toto to the Court that property nos. 1 and 3 do not the Court that property nos. 1 and 3 do not the Court that property nos. 1 and 3 do not belong belong belong to the defendants and property no.2 belongs to the defendants and property no.2 belongs to the defendants and property no.2 belongs toto to the defendants. The plaintiffs shall therefore the defendants. The plaintiffs shall therefore the defendants. The plaintiffs shall therefore have have have to consider the execution of decree against to consider the execution of decree against to consider the execution of decree against specified specified specified properties of the judgment properties of the judgment properties of the judgment debtor-defendants. debtor-defendants. debtor-defendants. 13. 13. 13. Hence, the following order: Hence, the following order: Hence, the following order: . Chamber Summons is made absolute in terms of Chamber Summons is made absolute in terms of Chamber Summons is made absolute in terms of prayer prayer prayer (a). (a). (a). The Plaintiff as a decree holder shall The Plaintiff as a decree holder shall The Plaintiff as a decree holder shall be be be entitled entitled entitled to execute the decree in any one of the to execute the decree in any one of the to execute the decree in any one of the modes modes modes specified in the C.P.C. by taking out an specified in the C.P.C. by taking out an specified in the C.P.C. by taking out an Execution Execution Execution Appliction as per correct procedure. The Appliction as per correct procedure. The Appliction as per correct procedure. The defendants/judgment defendants/judgment defendants/judgment debtor shall maintain status debtor shall maintain status debtor shall maintain status quo quo quo in in in respect of the property No.2 in the schedule respect of the property No.2 in the schedule respect of the property No.2 in the schedule toto to the Chamber Summons being property at Berar the Chamber Summons being property at Berar the Chamber Summons being property at Berar House, House, House, 3rd Abdul Rehman Street, Bombay for four 3rd Abdul Rehman Street, Bombay for four 3rd Abdul Rehman Street, Bombay for four weeks weeks weeks from today. from today. from today. (Smt (Smt (Smt R.S.Dalvi,J) R.S.Dalvi,J) R.S.Dalvi,J) 7