Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3587 OF 2019
IN
EXECUTION APPLICATION NO.318 OF 2018
IN
S.C. SUIT NO. 6629 OF 2006
(CNR MHCC010097682019)
Munnawar Husain Siddiqi
Proprietor of M/s. Manu Electricals ...Plaintiff.
Versus
1. M/s. National (India) Contractors
and Engineers & Ors. ...Defendants.
Appearance:
Advocate Mr. J.M. Siddiqui for Plaintiff.
Advocate Mr. Balbheem Patil for the Defendants.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 16th September, 2021
ORDER
Defendant Nos.1, 3 and 4 have taken out the notice of
motion seeking various reliefs i.e. to stay the execution of the warrant
of attachment under order 21 Rule 54 of the CPC, set aside the order of
attachment, not to order sale of the property attached, dismiss the suit
claim, declare that the suit claim is access to what has been contained in
contractual documents, the statement in affidavit of evidence of plaintiff
against the defendants be declared as null and void the order 54 of CPC
be declared as bad in law, give an opportunity of hearing to all the
defendants in the suit, order the plaintiff to give proper and correct
amount of claim, issue fresh summons to the defendants of the suit,
-- 1 of 6 --
2 NM 3587/2019 Exe.App.318/2018
defendants be allowed to file an appeal against the decree, dismiss the
warrant of attachment, warrant of attachment be treated as null and
void, order of the Registrar of the Court dated 22.2.2019 be set aside
and suit claim should be dismissed for default, etc.
2. According to defendants the warrant of attachment of
immovable property situated at 628, Qatar House, 13th Road, Khar (W),
Mumbai52, is illegal, because no notice before issuing the warrant was
given to defendants. The plaintiff has suppressed certain material facts
from the Court. He has played fraud upon the Court. The defendant
No.2 expired on 25.4.2017. Without taking his legal representatives on
record, the execution proceeding was continued. It is necessary to
furnish true and correct information by the plaintiff in suit regarding his
claim against defendants. The attached property is not in possession of
defendants. The suit claim is excess than what has been contained in
the contractual documents. On all those grounds, the defendants asked
to remove the warrant of attachment.
3. Notice of motion has been objected by the plaintiffdecree
holder, vide reply dated 18.7.2019. The plaintiff denied the
contentions. According to plaintiff, the decree in suit No.6629/2006
has attained the finality. It has not been set aside by any competent
Court. Therefore, as the decreetal amount has not been paid by the
defendants, the attachment of their immovable property on 23.10.2018
was proper and justified. Plaintiff denied that the execution proceeding
is not maintainable because of the death of Judgment Debtor No.2.
Plaintiff claimed that the death of defendant No.2 was not informed to
him and therefore, there was no question of bringing LRs of the
-- 2 of 6 --
3 NM 3587/2019 Exe.App.318/2018
defendant No.2 on record. According to plaintiff, there is no reason to
remove the attachment of the immovable property and asked for
ordering sale of the property.
4. Heard both. Perused N/M, say, rejoinder of the plaintiff,
sirrejoinder of the defendants and the record. On its basis, following
points rise for the determination and the findings to each of them for
the reasons recorded as below.
Sr.No. POINTS FINDINGS
1. Whether the property attached was not
liable to attachment ? No.
2. What order ? N/M is disallowed.
Reasons:
As to Point No. 1 :
5. Order 21 Rule 58 of CPC provides giving a hearing to the
person objecting the attachment of the immovable property under
Order 21 Rule 58 of CPC. It provides adjudication of the claim or
objection of the person, resisting the execution of the decree by way of
attachment of the immovable property.
6. A perusal of the affidavit supported to N/M, nowhere, it is
appearing that the defendant Nos.1, 3 and 4 have denied their right,
title and interest over the immovable property attached. They have not
come with a case that the immovable property is owned by any third
person. At one hand, they admit occupying the property attached and
at the other hand, state that it is not in their possession. Though it is a
plea that there are share holders in the immovable property attached,
-- 3 of 6 --
4 NM 3587/2019 Exe.App.318/2018
no document, showing the right, title and interest of any third person in
the property attached, is made available on record. It is not shown by
the defendant Nos.1, 3 and 4 that they have no concern or nexus with
the immovable property attached and it is standing in the name of third
person. Mere plea that there are other share holders in the immovable
property, may not be sufficient, unless supported with cogent evidence.
The fact that after attachment of immovable property on 23.10.2018,
no third person has come forward and set up any claim of whatsoever
nature over the immovable property attached.
7. So far as other objections of defendants is concerned, those
are vague in nature. When the decree under execution has attained the
finality, there is no scope to consider the plea that the decreetal amount
is high than what has been shown in the contractual documents.
Though according to J.D. the proceeding is not maintainable because of
death of J.D.No.2, there is no document showing knowledge to the
plaintiff about the death of defendant No.2 (Judgment Debtor 2). It
was expected from the plaintiff to take appropriate steps of bringing
legal heirs of the deceased No.2 on record when he had no knowledge
of J.D.No.2. Moreover, defendant No.1 is a firm, of which defendant
Nos.2 to 4 are the directors. Therefore, even not bringing the legal
representatives of the deceased defendant No.2 on record is not fatal to
the execution proceeding. The legal heirs of the deceased defendant
No.2 are already on record as defendant Nos.3 and 4. They are facing
the execution proceeding as the partners of defendant No.1 company.
In such circumstances, the death of defendant No.2 is not seriously
affecting on the maintainability of the execution proceeding.
-- 4 of 6 --
5 NM 3587/2019 Exe.App.318/2018
8. During course of hearing, the Advocate for the defendants
argued that the immovable property attached was not the subject
matter of the suit. A perusal of the decree, it is appearing that it was a
money decree and because of nonpayment of decreetal amount, the
plaintiff asked to attach the immovable property of the defendant No.1
firm. Order 21 Rule 54 of CPC does not contemplate attaching the only
immovable property which was subject matter of the suit. A perusal of
the prayers of the N/M, it is found that the same are improper and
inconsistent to each other. It appears that only formal objection has
been put by the defendant to stall the further execution proceeding. No
merit is found in the objections of N/M taken by the defendants.
Hence, answering point No.1 in negative, following order is passed.
ORDER
Notice of Motion No. 3587 of 2019 is disallowed with costs and
accordingly disposed off.
Dated : 16.09.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 16.09.2021
Transcribed on : 21.09.2021
Signed on : 27.09.2021
-- 5 of 6 --
6 NM 3587/2019 Exe.App.318/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 27.09.2019 5.00 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
16.09.2021
JUDGMENT /ORDER signed by P.O. on 27.09.2021
JUDGMENT /ORDER uploaded on 27.09.2021
-- 6 of 6 --