Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of motion No.254/2019
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MHCC010006452019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO. 254 OF 2019
IN
EXECUTION APPLICATION NO.105 OF 2018
IN
SUMMARY SUIT NO. 256 OF 2016
Masoom Ahmad Maksood Khan ...Plaintiff
Versus
Harshad Pimpale & Another ...Defendants
Mr. Asif Naqvi, ld. Advocate for plaintiff.
Ms. Medha Jondhale, ld. Advocate for defendants.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.84,
O R D E R
(Delivered on 04/02/2026)
1) By this notice of motion original defendant/judgment debtor
prayed to ‘quash and set aside’ the warrant of attachment/order
dated 10/10/2018 passed by the Court in Execution Application
No.105 of 2018 in Summary Suit No.256 of 2016.
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Notice of motion No.254/2019
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2) Supported by affidavit of Harshad Pimpale. It is contended that
defendant deliberately did not serve either demand notice or writ of
summons and fraudulently obtained the ‘ex-parte order, judgment
and decree’ against him, despite the fact that he paid the money to
the respondent/original plaintiff/decreeholder.
3) Hence, prayed to quash and set aside the impugned order,
judgment and decree passed by the Court and the order of
attachment in the Execution Application.
4) Respondent/original plaintiff/decreeholder filed the affidavit in
reply dated 14/02/2019 and strongly resisted the notice of motion
contending that there was due, proper and complete service on the
applicant/original defendant in accordance with the law.
5) The grounds set out in the notice of motion are false and
frivolous, therefore, denied in toto. On the other hand, defendant
was constantly in touch with the respondent/original plaintiff. The
said fact admitted by the plaintiff in para 6 of the reply. However,
taken a stand that at the time of service of writ of summons,
defendant was very well present in the shop and upon seeing the
bailiff and plaintiff, defendant closed the shop and started to run
away after refusing to accept the service of summons. Thereafter,
defendant was called on mobile phone, but he ran away. Thus, there
is a ‘due and proper’ service. Defendant did not approach to the Court
with clean hands hence, prayed to dismiss the notice of motion with
costs.
6) Following points arises for my determination to which I have
noted my findings with reasons thereon to each one as under :-
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Notice of motion No.254/2019
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SR.NO. POINTS FINDINGS
1 Whether the present notice of motion
deserves to be allowed ? Yes.
2 What Order? Notice of motion
is Allowed.
R E A S O N S
7) Heard ld. Advocate Ms. Medha Jhodale for applicant/original
defendant/judgment debtor and ld. Advocate Mr. Asif Naqvi for the
original plaintiff/decreeholder/respondent.
8) Gone through the written synopsis dated 05/05/2022 as well as
additional further arguments dated 15/01/2024 and the documents
annexed with the said argument especially Exhibit-B Email dated
02/05/2015 sent by respondent/original plaintiff Masoom Khan
whereby plaintiff acknowledged receipt of Rs.1,00,000/- on the day
when the email was sent and total Rs.6,00,000/- till date out of
Rs.10,50,000/-.
9) The other email Exhibit-C dated 30/10/2018 is addressed to the
applicant/original defendant Harshad Ramesh Pimpale where
plaintiff acknowledged Rs.1,70,000/- only and one cheque is
tendered vide Exhibit-D with receipt of Rs.1,70,000/- drawn on
HDFC Bank in the name of Massom Ahmad Khan which is Manager’s
Cheque bearing No.002096. As such total Rs.10,50,000/- argued to
be received by the decreeholder/respondent/original plaintiff. Hence,
prayed to set aside the impugned ex-parte order, judgment and
decree.
10) Per contra, ld. Advocate Mr. Asif Naqvi for original plaintiff/
decreeholder/respondent argued and pointed out the email dated
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07/12/2013 whereby admits that defendant obtained Rs.22,50,000/-
as a business loan from plaintiff. Therefore, even if assuming that
Rs.10,50,000/- have been received, still the remaining balance is not
received. Hence, prayed to dismiss the said notice of motion being
there is due, proper and effective service in accordance with the law.
11) In support of her claim, she relied upon ratio of the Hon’ble
Delhi High Court in the matter of Meenu Bhargava and Anr. Vs.
Mukul P. Bhargava and Ors, CM NO.8716/2008 & FAO (OS)
No.282/2008; Gajraj Singh s/o Niyadar Singh and Heera Singh and 5
others in Civil Revision No.27 of 2013 passed by Hon’ble High Court
of Madhya Pradesh and Sushil Kumar Sabharwal Vs. Gurpreet Singh
and other, AIR 2002 Supreme Court 2370.
12) It is also pointed by rejoinder, the ld. Advocate Ms. Jhondale
that in decree itself, there is endorsement that Rs.8,50,000/- out of
Rs.22,50,000/- has been received. Hence, prayed to allow the notice
of motion.
13) In aforesaid scenario, it is not disputed that the suit was filed for
recovery and decreed ex-parte. However, stand of original
defendant/judgment debtor is that the summons was never served.
Therefore, decree is non-est.
14) Per Contra, the rival stand of the original plaintiff is that upon
seeing the bailiff and the plaintiff, the applicant/judgment debtor
closed the shop and ran away to avoid the service after refusing to
accept the summons.
15) Be it as it may be as per the ratios relied upon by the
applicant/judgment debtor even if assuming that summons is
refused, true it is that it is ruled that it is duty of the bailiff to affix
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Notice of motion No.254/2019
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the summons on the conspicuous part of the property house as the
case may be, so as to show the legal, valid and effective service of
writ of summons in accordance with law. Said procedure found not
observed by bailiff.
16) Similarly, admittedly, from the email and the from the decree, it
appears that out of total amount of Rs.22,50,000/-, some amount
was admitted to be paid by the applicant/judgment debtor.
Therefore, in the circumstances, the ex-parte decree on the ground
that there was improper service deserves to be allowed.
17) The notice of motion under Order IX Rule 13 of the Code of
Civil Procedure so as to see what is the actual claim when the
respondent/original plaintiff has denied to receive possession of the
shop. It is admitted fact that the applicant is a Real Estate Agent or
Broker. There was a transaction to purchase the immovable
property/shop.
18) I am already inclined to set aside the ex-parte order, judgment
and decree dated 05/04/2017 passed in Summary suit No. 256 of
2016 as notice of motion No.4210 of 2018 is allowed. Therefore, the
attachment of property passed by order dated 10/10/2018 in
Execution Application No.105 of 2018 deserves to be set aside
accordingly.
19) Hence, I noted my findings to the Point Nos.1 and 2 accordingly
and I proceed to pass following order :
ORDER
1. Notice of motion No.254 of 2019 is allowed.
2. Order of attachment dated 10/10/2018 is quashed and set
aside.
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3. Property is released from the order of attachment.
4. Execution Application No.105 of 2018 is also disposed of with
opportunity to file fresh when decree is passed in the suit.
5. If the defendant fail to contest the suit by taking appropriate
steps on 02/03/2026, the order stands revoked automatically
without further reference to this Court.
6. Notice of motion No.254 of 2019 is disposed of accordingly.
(Dictated, delivered and pronounced in open Court)
( SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.84,
Date : 04/02/2026 CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on : 04/02/2026.
Transcribed on : 04/02/2026.
Signed on : 05/02/2026.
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Notice of motion No.254/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Sonali S. Naik
Name of Stenographer07/02/2026 5.30 p.m.
Name of the Judge (With C.R. No.) HHJ SHRI. SANJIV PRABHAKAR
PINGLE
(COURT ROOM NO.84)
Date of Pronouncement of
JUDGMENT / ORDER
04/02/2026
JUDGMENT / ORDER signed by P.O.
on
05/02/2026
JUDGMENT / ORDER uploaded on 07/02/2026
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