Final Order 3

Order Details: Notice of Motion
Pdf Text: 1 NM 439-20
MHCC010011082020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.439 OF 2020
IN
SUIT NO. 1095 OF 2004
Shri Pyarelal Ramnaresh Gupta (Since deceased)
1(a) Mrs. Usha Sanjay Gupta and Ors … Plaintiff
V/s
Shri Durgaprasad Ramnaresh Gupta … Defendant
Appearances :
Adv. Anand Upadhyay i/b Adv. Dhananjay Pathak for plaintiff.
Adv. Hemen S. Thakkar for defendant.
CORAM : D. R. DESHPANDE
JUDGE,
(C.R.NO.02)
DATE : 28th JULY, 2026
ORDER
1. This Notice of Motion is for rejection of plaint
vide order
VII, Rule 11 of the Code of Civil Procedure, 1908.
2. Perused the application, reply, pleadings of the parties,
more particularly, the plaint and the record.
3. The learned advocate for the plaintiff holding for AOR has
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requested for time to argue the matter. However, considering the old
age of the matter, and in the circumstances, prayer for adjournment is
rejected.
4. Heard the learned advocate for defendant. No argument is
advanced by the advocate h/f AOR. The only ground for rejection is
that, the suit is for declaration that the judgment and decree dated
27.08.2001 in S.C. Suit No.1366 of 1999 is nullity, not binding on the
plaintiff and defendant are not entitled to execute the same against the
plaintiff, with further injunction restraining defendant from executing
the said judgment and decree, which, according to him, is not
maintainable, as the said relief can not be prayed for once the decree
has been passed and appropriate remedy of preferring an appeal is not
pursued.
5. In view of the submissions at bar and the record, the
following are the points for determination alongwith my findings
thereon for the reasons ensuing :
Sr. No. Points Findings
1. Whether plaint is liable to be rejected
vide
Order VII, Rule 11 of the Code of Civil
Procedure, 1908 ?
Yes
2. What order ? As per final order
Reasons :
6. Obviously, there is a decree passed in the said S.C. Suit
No.1336 of 1999, which is sought to be declared as nullity and not
binding, with injunction restraining defendant from executing the said
decree. At the out set, it has to be stated that, whether the decree
passed is nullity and is not capable being executed is a question relating
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to
“execution”, “discharge”, “satisfaction” within the meaning of Section
47 of the Code of Civil Procedure, 1908, which requires that
all the
questions relating to execution, discharge and satisfaction are to be
dealt with executing court and not by way of separate suit so that the
relief of declaration and injunction being dependent upon
determination of this question, which can not be agitated by way of
separate civil suit in view of the prohibition under Section 47 of the
Code of Civil Procedure, 1908, suit suffers from bar provided by law so
as to make the ground in Order VII, Rule 11 (d) of the Code of Civil
Procedure, 1908 applicable. Furthermore, Section 41 (a) of the Specific
Relief Act, 1963 debarrs the plaintiff from claiming injunction against
the party from prosecuting the proceedings. Moreover, the
“equally
efficacious remedy” that ought to have been chalked out would have
been to prefer an appeal against the judgment and decree sought to be
declared nullity in the suit, as already observed by the Hon’ble High
Court in the same litigation, or by way of preferring application for
determination of question relating to execution, discharge and
satisfaction within the meaning of Section 47 of the Code of Civil
Procedure, 1908, so that suit for injunction is also barred by Section
41(h) of the Specific Relief Act, 1963.
7. At any cost, suit can be said to be one suffering from bar
provided by statute so that plaint is liable to be rejected
vide Order VII,
Rule 11 (d) of the Code of Civil Procedure, 1908. Accordingly, the
findings are recorded.
In the result, I pass the following order :
ORDER
1. Notice of Motion No.439 of 2020 is allowed.
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2. Plaint is hereby rejected
vide Order VII, Rule 11 (d) of the Code of
Civil Procedure, 1908.
3. Notice of Motion No.4884 of 2019 filed by the plaintiff stands
dismissed alongwith rejection of plaint.
4. Parties to bear their own costs.
(D.R. Deshpande)
Judge,
City Civil Court,
Date: 28.07.2026 Gr. Bombay.
Dictated on : 28.07.2026
Transcribed on : 28.07.2026
Signed on : 28.07.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
31.07.2026 At 11.38 P.M. J.S.CHAVAN
UPLOAD DATE AND TIME NAME OF THE STENOGRAPHER
Name of the Judge (With Court
Room Number)
HHJ D.R. DESHPANDE
JUDGE, CITY CIVIL COURT
(C.R.NO.02)
Date of pronouncement of
Judgment/ Order
28.07.2026
Judgment/Order signed by P.O.
on
28.07.2026
Judgment/Order uploaded on 28.07.2026
Judgment/Order corrected as
per Section 152 of CPC, 1908
uploaded on 31.07.2026
31.07.2026
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