Interim Order 1

Order Details: Other
Pdf Text: Order below application
in Exe. Application No. 54/2020 1
MHCC010006172020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
ORDER BELOW APPLICATION DTD.29/11/2021
IN
EXECUTION APPLICATION No. 54 OF 2020.
Jayprakash Atmaram Thakur.
R/At : B403, Mhalsa Heights CoOperative
Housing Society, Sector 19,
Airoli, Navi Mumbai. ...Plaintiff/
Decree Holder
Versus
Shashidhar Babu Shetty.
R/at 50/4, Akashwani CoOperative Housing Society,
Datar Colony, Bhandup (East),
Mumbai – 400 042. ....Defendant./
Judgment Debtor.
Appearance:
Ms. Swati Thakur, Advocate for Plaintiff/Decree Holder.
Adv V. V. Yelve, Advocate for defendant/Judgment Debtor.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR
(C.R. No.59)
DATE : 18th JUNE, 2022.
-- 1 of 10 --
Order below application
in Exe. Application No. 54/2020 2
ORDER
This is an application of Decree Holder to arrest and detain
Judgement Debtor in civil prison under Order 21 Rule 30 of the Code of
Civil Procedure,1908 (in short 'CPC'), to attach Judgment Debtor's
immovable property under Order 21 Rule 54 of CPC and to direct the
Judgment Debtor to pay decretal amount of Rs. 24,17,869/ and legal
expenses, advocate's fees and compensation for harassment.
2. The Decree Holder contends that warrant for attachment of
movable properties of the Judgment Debtor under Order 21 Rule 43 of
CPC was issued on 04.09.2021. It is executed on 15.11.2021 and
symbolic attachment of household items is done in presence of Decree
Holder. On that day, Judgment Debtor's fourwheeler was parked in his
society. However, it was removed by Judgment Debtor's friend within
minutes, with malafide intentions to avoid attachment of the vehicle.
Therefore, the vehicle could not be attached. Judgment Debtor is trying
to avoid payment of Decree Holder's amount. The valuation of the
attached movable items is so meager that it will not satisfy the decretal
amount. Judgment Debtor has not filed affidavit of his assets in
compliance of the order dated 09.07.2021. Judgment Debtor is residing
with his family in his selfowned house at 50/7, Akashwani C.H.S.L.,
Datar Colony, Bhandup (W), Mumbai 400 042 for last 30 years.
3. It is further contended that the Judgment Debtor has
disobeyed the order of the Court dated 09.07.2021. He is an accused
under Section 138 of The Negotiable Instrument Act at Jaypur Court.
He has signed Partnership Deed dated 11.01.2015 in respect of “M/s.
Indian Tadka Family Restaurant and Bar” with intention of cheating the
-- 2 of 10 --
Order below application
in Exe. Application No. 54/2020 3
Decree Holder. He has also signed M.O.U. for business “M/s. Damini
Bar and Restaurant” on 21.01.2019. He is habitual offender of the
offence of cheating. Therefore, the present application has been filed
for aforesaid reliefs.
4. On this application, show cause notice was issued to the
Judgment Debtor vide order dated 13.12.2021. Judgment Debtor filed
affidavit in reply, contending therein that he had filed application under
Order 9 Rule 13 of CPC. But it is rejected on 11.02.2021 as he was
unable to attend the Court due to COVID19 pandemic. He has filed
appeal in December 2021 against the Decree Holder, before District
Judge, Thane along with application for condonation of delay and the
appeal is pending before the Court. His business of hotel viz.
“M/s.Indian Tadaka Family Restaurant and Bar” was completely shut
down and taking its benefit Decree Holder assured that he will enter
into the partnership and will look after the business. Thereafter he
resiled from his earlier stand. He is not keeping well and is under
medical treatment. His mother is also under medical treatment. He is a
reputed person in the society and is the only earning person in his
family. He is doing business for last 15 years. He is permanent resident
of the given address. If order is passed under Order 21 Rule 37 of CPC,
he will suffer great loss and hardship. Therefore, he prayed to recall
and cancel the show cause notice and to reject the prayer of Decree
Holder.
5. Advocate for both parties filed written notes of arguments
on the application. Perused written notes of arguments of both sides
and the documents on record filed by the parties.
-- 3 of 10 --
Order below application
in Exe. Application No. 54/2020 4
6. Following points arise for my consideration, to which I
record my findings for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether Judgment Debtor is
liable to be arrested and
detained in civil prison in
execution of the decree?
Yes
2. Whether immovable property of
the Judgment Debtor,
mentioned in the application, is
liable to be attached in
execution of the decree?
Kept open
3. What order? As per final Order
Reasons
As to point No.1 :
7. The present proceeding is filed on 07.10.2018 for
execution of decree dated 04/08/2018 passed by Learned C.J.S.D.,
Thane, in Special Civil Suit No. 574 of 2017. The decree is for payment
of Rs.15,00,000/ along with interest at the rate of 10% p.a. from
02.07.2016 till realization of the entire amount. The execution
application was initially filed before Learned C.J.S.D. Thane. However,
Judgment Debtor being permanent resident within local jurisdiction of
this Court, it is sent for execution to this Court on 11.11.2019 with
certificate that decree has not been executed to any extent till the said
date.
8. The decree is presented to this Court on 31/01/2020 and
since then various steps are taken by the Decree Holder to get the
decree executed. Opportunity to file the reply to execution application
-- 4 of 10 --
Order below application
in Exe. Application No. 54/2020 5
was given to the Judgment Debtor and accordingly he filed his reply to
the execution. The record further shows that on the application filed by
the Decree Holder, Judgment Debtor is directed to file affidavit of his
assets, but the said order is still not complied by the Judgment Debtor.
On the application of Decree Holder, warrant for attachment of
movable articles of Judgment Debtor was issued and consequent to the
warrant, the articles shown in the inventory in the bailiff report dated
11.11.2021, are attached. Thereafter, the present application came to
be filed by the Decree Holder for the reliefs mentioned in the first
paragraph.
9. Order 21 Rule 30 of CPC provides that decree for payment
of money may be executed by the detention in the civil prison of the
Judgment Debtor or by the attachment and sale of his property, or for
both. Section 51 of CPC further provides the powers of the Court to
enforce execution of decree and in its proviso, it is laid down that where
the decree is for the payment of money, execution by detention in
prison shall not be ordered unless, after giving the Judgment Debtor an
opportunity of showing cause why he should not be committed to
prison, the Court, for the reasons recorded in writing, is satisfied:
a) that the judgmentdebtor, with the object or effect of obstructing
or delaying execution of decree,
i) is likely to abscond, or leave the local limits of the
jurisdiction of the Court, or
ii) has, after the institution of the suit in which the decree
was passed, dishonestly transferred, concealed, or removed
any part of his property, or committed any other act of bad
faith in relation to his property, or
b) that the Judgment Debtor has, or has had since the date of the
-- 5 of 10 --
Order below application
in Exe. Application No. 54/2020 6
decree, the means to pay the amount of the decree or some
substantial part thereof and refuses or neglects or has refused or
neglected to pay the same, or
c) that the decree is for a sum for which the judgmentdebtor was
bound in a fiduciary capacity to account
10. Order 21 Rules 37 to 40 of the CPC further prescribe the
procedure for arrest and detention of Judgment Debtor in civil prison.
As per Rule 37 therein, it is necessary to issue show cause notice to the
Judgment Debtor and accordingly it issued in the present case. Rule 39
further provides for payment of subsistence allowance by Decree Holder
before arrest and thereafter periodical payments in advance. Rule 40
provides that when Judgment Debtor appears in obedience to the notice
issued in Rule 37, opportunity of showing cause as to why he should
not be committed to the civil prison is required to be given to the
Judgment Debtor. As per Sub Rule (3) of Rule 40, upon the conclusion
of the inquiry under Sub Rule (1), the Court may subject to the
provision of section 51 and to the other provisions of CPC make an
order for detention of Judgment Debtor in civil prison and shall in that
event cause him to be arrested, if he is not already under arrest.
11. In the light of the above provisions in CPC, therefore, it is
necessary to record satisfaction, if the present case is covered under the
proviso to section 51 of CPC. The contention raised by the Decree
Holder in his application, supported with affidavit, is that the Judgment
Debtor with malafide intention, removed his fourwheeler just prior to
execution of the warrant of attachment. Further it is claimed that
Judgment Debtor entered into a Partnership deed and has signed MOU.
-- 6 of 10 --
Order below application
in Exe. Application No. 54/2020 7
12. Photocopy of the Partnership Deed dated 11.1.2015 is
produced along with affidavit. It reveals that Judgment Debtor has
entered into Partnership business in respect of “M/s. Indian Tadaka
Family Restaurant and Bar” situated at first floor Shivshankar Plaza, 2nd
Plot No.1, Sector 7, Airoli, Navi Mumbai for a period of 8 years. This
reflects that the Judgment Debtor is earning income from the business.
Moreover, the photocopy of MOU dated 21.09.2019 in which Judgment
Debtor is first party also shows that Judgment Debtor is earning income
from the business in the name and style of “M/s. Damini Bar and
Restaurant” situated at Borivali (East). On the basis of above
documents, interference can be drawn that Judgment Debtor has
sufficient means to pay the decretal amount. However, till today
Judgment Debtor has not paid a single penny towards satisfaction of the
decree. Moreover, he has removed his vehicle to save it from
attachment. Therefore, in the light of above facts, conduct of the
Judgment Debtor satisfies, precondition provided in clause (a)(ii) and
(b) of proviso to Section 51 of CPC. Moreover, failure of Judgment
Debtor to comply order of this Court by filing affidavit of his assets also
reflects malafide conduct of the Judgment Debtor.
13. In his affidavit of reply, the Judgment Debtor contents that
the appeal against the decree is pending in District Court, Thane.
Documents on record do indicate that delay in filing appeal is condoned
and the appeal is admitted. But nothing is produced on record to show
that stay is granted to the execution of the present proceeding.
Advocate of Decree Holder made a statement before Court that no stay
is granted by the Appellate Court to the execution proceedings. It is
admitted position that the application of the Judgment Debtor to
condone delay in moving application under Order 9 Rule 13 of CPC is
-- 7 of 10 --
Order below application
in Exe. Application No. 54/2020 8
dismissed in default. This indicates an attempt on the part of the
Judgment Debtor to delay the execution proceedings.
14. Judgment debtor has raised the ground of his illness as well
as the illness of his mother to reject the present application. No
document in respect of mother's illness is produced on record. The
medical certificate dated 13.01.2022 produced by Judgment Debtor in
support of his contentions of his illness does not show that Judgment
Debtor is suffering from any prolonged illness of serious nature.
Therefore, Judgment Debtor has not made out any cause, which can be
considered as sufficient, for rejecting the prayer of arrest and detention
in civil prison, made in the present application. Therefore, the above
point is answered in the affirmative.
As to point No.2 and 3 :
15. The Decree Holder has also prayed for attachment of
immovable property house at 50/7, Akashwani C.H.S.L., Datar Colony,
Bhandup (W), Mumbai 400 042. There is no evidence to show that the
Judgment Debtor is owner of the said property. No documents in
respect of the said property are produced on record in compliance of
Rules 13 and 14 of Order 21 of CPC. Therefore, at this stage no order of
attachment of the said property can be passed. The Decree Holder is at
liberty to move proper application after compliance of the said
provision. Therefore, this point is kept open and following order is
passed :
ORDER
1) The decree dated 04.08.2018 in Spl. Civil Suit No.574 of 2017 be
executed by arrest and detention in civil prison of the Judgment
-- 8 of 10 --
Order below application
in Exe. Application No. 54/2020 9
Debtor.
2) Decree Holder to comply with Order 21 Rule 39 of the Code of
Civil Procedure, 1908. After compliance by Decree Holder,
warrant of arrest be issued against the Judgment Debtor for his
detention in civil prison in terms of Section 58 (1)(a) of the Code
of Civil Procedure, 1908.
3) If Judgment Debtor pays the amount of the decree and cost of
arrest to the officer arresting him, such officer shall release the
Judgment Debtor.
4) The prayer of the Decree Holder to attach immovable property
mentioned in the application is kept open and will be considered
after Decree Holder complies Rule 13 and 14 of the Code of Civil
Procedure, 1908.
(S.B. Pawar)
Judge,
Dated : 18.06.2022 City Civil and Sessions Court,
Greater Bombay (CR 59).
Dictated on : 18.06.2022.
Transcribed On : 18.06.2022 and 20.02.2022.
Signed on :
-- 9 of 10 --
Order below application
in Exe. Application No. 54/2020 10
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.06.2022 at 2.43 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
SRoom No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 18.06.2022
Order signed by P.O. on 22.06.2022
order uploaded on 22.06.2022
-- 10 of 10 --