Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No. 1774/2018 in Execution Appln. No.428/2016
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1774 OF 2018
CNR NO.:MHCC010057952018
IN
EXECUTION APPLICATION NO.428 OF 2016
IN
O.S. NO. 30 OF 2011
Shalibhadra Traders & Anr. ...Applicant/
Orig. defendants.
V/s.
M/s. Raghunath Agro Pvt. Ltd. ...Respondents/
Orig. Plaintiff.
Appearances:
Advocate Ms. Mukti for the plaintiff.
Advocate Ms. Seema Hunnurkar for the defendants.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 31st JANUARY, 2020.
ORAL ORDER
This is a Notice of Motion filed by Judgment Debtor to set aside
order to proceed exparte and stay warrant of attachment and condone
delay of 88 days.
2. It appears that in the affidavit, applicant has stated that he has
accepted the service of execution application on him by mentioning that
incomplete set of documents served upon him. He has further stated
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that on perusing the application he came to know that suit filed by
plaintiff is decreed by the Hon'ble Adilabad Court on 18.07.2014 and
the decree transferred to City Civil Court, Mumbai for execution. He has
further stated that immediately on or about 24.10.2017, he went to
meet his Advocate at Hyderabad. He has further stated that he was
under belief that his application filed in the suit at Adilabad Court are
pending. He has further stated that his Advocate at Hyderabad drafted
two applications for setting aside decree dated 18.07.2014 and for stay
and execution of application. He has further stated that his application
before Adilabad Court for stay was kept for hearing on 19.02.2018 and
he prayed to allow the Notice of Motion.
3. It appears exparte order is passed against Judgment Debtor on
25th October, 2017 and Judgment Debtor has filed draft Notice of
Motion on 24.04.2018. Judgment Debtor has stated that on 25.10.2017,
he was not present before the Court because he was at Adilabad to file
application to set aside the decree. Judgment Debtor has also stated
that he was not informed by his Advocate that his applications filed in
the suit were dismissed and the suit was decreed. It appears plaintiff
has not filed reply.
4. Hence, considering these circumstances that Judgment Debtor's
Advocate did not inform him about the fact that the suit is decreed
against him, it will be proper to give chance to Judgment Debtor to file
his say in the execution proceeding. But at the same time it cannot be
overlooked that execution proceeding was served upon Judgment
Debtor but still he did not promptly appear before the Court. Judgment
Debtor contends that he did not receive all the documents when
received notice of execution proceeding but in that case he could have
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gave application in the Court to get such papers. But Judgment Debtor
has preferred to remain absent which has caused delay in execution
proceedings. Hence, it will be proper to allow this Notice of Motion to
set aside order dated 25.10.2017 to proceed exparte against Judgment
Debtor and cancel warrant of attachment against him and allow him to
file reply subject to cost and condone delay of 88 days in the interest of
justice. Hence, pass following order.
ORDER
1. Notice of Motion No.1774 of 2018 is allowed in terms of prayer
clauses (a), (b) and (c) subject to cost of Rs.7000/ to be given to
plaintiff by defendants.
2. Notice of Motion No.1774 of 2018 stands disposed of.
(SONALI P. AGARWAL)
Judge,
Date: 31.01.2020 City Civil Court,
Gr. Bombay.
Dictated on : 31.01.2020
Transcribed on : 31.01.2020
Signed on : 31.01.2020
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:4: N.M. No. 1774/2018 in Execution Appln. No.428/2016
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
03.02.2020 At 04:45 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
31.01.2020
Judgment/Order signed by P.O. on 31.01.2020
Judgment/Order uploaded on 03.02.2020
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