Final Order 1

Order Details: Other
Pdf Text: Misc. Application No.31/2018 ..1..
CNR No.MHCC010066812018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
MISCELLANEOUS APPLICATION NO.31 OF 2018
IN
EXECUTION APPLICATION NO.87 OF 2017
IN
SUIT NO.2133 OF 2009
Nandu Ramshankar Yadav .. Applicant
In the matter between
Saval Prasad Baburam Yadav .. Plaintiff
Versus
Nandu Ramshankar Yadav .. Defendant
Mr. Ameya Tamhane, advocate for plaintiff
Mr. B.T.Yadav, advocate for applicant/defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 18th October, 2019
ORAL ORDER
Applicant/judgment debtor/original defendant has filed an
application under section 340 of Code of Criminal Procedure to hold an
inquiry and to record finding that an offence as referred to in section
195 of Cr.P.C is committed by the original plaintiff and to lodge
complaint with Additional Chief Metropolitan Magistrate, Mumbai or
taking action against original plaintiff for committing offences under
sections 193, 196, 199, and 200 of IPC or such other offence.
2. It is the contention of applicant that original plaintiff had filed
suit bearing No.2133 of 2009 before this Court and claimed simplicitor
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injunction against the applicant/original defendant. This court by
judgment and order dated 07.02.2015 was pleased to decree the suit.
The applicant has preferred appeal against said judgment and decree
vide First Appeal bearing No.563 of 2015 before Hon'ble High Court
and said appeal was admitted vide order dated 12.06.2015. Applicant/
original defendant has also filed Civil Application No.1461 of 2015 for
stay against the said judgment and decree passed by this Court and
Hon'ble High Court vide order dated 26.02.2016 has stayed the
operation of said judgment and decree dated 07.02.2015.
3. It is further contended that applicant failed to file paper book in
the office of Hon'ble High Court within the period of one year from the
date of admission of appeal consequently appeal came to be dismissed.
Thereafter, applicant has filed an application for restoration of appeal
vide application No.465 of 2017 and same is acknowledged by plaintiff
on 05.10.2016. Then original plaintiff filed execution application No.87
of 2017 on 05.12.2016 knowing well that applicant has already filed
appeal before the Hon’ble High Court and that, operation of judgment
and decree of this court has been stayed vide order dated 26.02.2016.
Inspite of that, original plaintiff has deliberately and intentionally made
false statement on oath that, “no appeal has been preferred from the
decree/order in column D of the application for execution. Thus,
plaintiff has committed an offence which is covered under section 195
of Cr.P.C and prayed to conduct inquiry under section 340 of Cr.P.C and
also made prayer in above terms.
4. Original plaintiff filed his affidavit in reply and does not dispute
that he filed suit No.2133 of 2009 against original defendant/applicant
in this court which was decreed on 07.02.2015 and defendant has filed
appeal before Hon'ble High Court vide FA No.563 of 2015 and said
appeal was admitted on 12.06.2015. He also does not dispute that said
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appeal was dismissed for noncompliance of order dated 12.06.2015
and original defendant has filed CA No.465 of 2017 for restoration of
first appeal and he filed execution application on 01.03.2017. It is
contended that first appeal is yet to be restored and he denied that he
made false statement. It is contended that he has in his affidavit in
support of execution application filed on 01.03.2017 stated that,
defendant had preferred first appeal No.563 of 2015 and it was
dismissed for noncompliance of order. He also stated in his affidavit
that, restoration application filed was yet not registered and on
01.03.2017, there was no stay to decree. In this background he prayed
for dismissal of application.
5. Applicant filed rejoinder to the reply of original plaintiff and
reiterated that plaintiff has made false statement in para D of the
tabular form that no appeal has been preferred from decree/order
knowing well that defendant has filed appeal against the said decree
and that, plaintiff has committed offence under relevant sections of IPC
and accordingly he prayed to allow Miscellaneous Application and to
dismiss execution application.
6. Perused application, reply of original plaintiff, rejoinder of
applicant to the reply of original plaintiff and execution application
No.87 of 2017. Heard learned advocate for applicant. Plaintiff did not
make any submission.
7. At the outset it is not in dispute that original plaintiff has filed
suit No.2133 of 2009 against original defendant/applicant in this court
which was decreed on 07.02.2015, defendant has challenged it in an
appeal before Hon'ble High Court vide FA No.563 of 2015 and said
appeal was admitted on 12.06.2015. It is also not in dispute that said
appeal was dismissed for noncompliance of order dated 12.06.2015,
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original defendant has filed Civil Application No.465 of 2017 for
restoration of first appeal and plaintiff has filed execution application
on 01.03.2017. Thus, it is clear that on the date of filing of execution
application no appeal against the said judgment and decree was
pending. I have gone through Execution Application No.87 of 2017. In
column D of said application in answer to the question that, whether
any appeal has been preferred from the decree/order; it is mentioned
'No'. However, in affidavit filed in support of execution application
plaintiff has stated that, defendant has preferred appeal bearing First
Appeal No.563 of 2015 against the said order dated 07.02.2015 and
said appeal came to be dismissed for default for noncompliance of the
appellant/defendant as per order dated 12.06.2015 passed by Hon'ble
High Court, Mumbai. He further affirmed on oath that, appellant/
defendant has preferred an application for restoration of said first
appeal bearing No. CAFST/23629/2016 which is not yet been
registered and now, there is no any other order or stay obtained to
execution of the said decree till date. Said affidavit was affirmed on
05.12.2016. Although original plaintiff in column D of execution
application has mentioned that no appeal has been preferred from the
decree but in affidavit filed in support of said execution application has
specifically stated about filing first appeal by the original defendant, its
dismissal for noncompliance on the part of original defendant and
filing of restoration application to restore first appeal by the defendant.
Thus, it is apparent that said act on the part of original plaintiff in
relation to contents mentioned in column D of execution application
does not appear deliberate and conscious. It is an error which cannot be
termed as an intentional act on the part of original plaintiff. More so
said error has not affected execution proceedings in any manner and it
cannot be said that content in column D of execution application is
mentioned with design to affect said proceeding. Had there would have
been intention on the part of plaintiff to suppress the fact of filing of
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first appeal by the original defendant then he would not have
mentioned about the fact of filing first appeal by defendant in his
affidavit which is filed in support of said execution application. In above
set of facts, it is not expedient in the interest of justice that an inquiry is
required to be held into offence if any, to prosecute original plaintiff
and to file complaint against him. Therefore, application deserves to be
rejected. Hence, pass following order.
ORDER
Miscellaneous Application No.31 of 2018 stands rejected and disposed
off accordingly.
(M. T. Asim)
Judge
Date : 18.10.2019 Gr. Bombay
Typed on : 18.10.2019
HHJ signed on :
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Misc. Application No.31/2018 ..6..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
19.10.2019, 5.45 pm
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
18.10.2019
JUDGMENT/ORDER signed by P.O.
on
19.10.2019
JUDGMENT/ORDER uploaded on 19.10.2019
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