Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3705/2019
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MHCC010100682019 NM filed on : 03/10/2019
Registered on : 03/10/2019
Decided on : 14/01/2026
Duration : 06 Y : 03 M : 13 D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO. 3705 OF 2019
IN
EXECUTION APPLICATION NO.611 OF 2016
IN
SUIT NO.6703 OF 2005 (DISPOSED OF)
(OLD HIGH COURT NO. 2051 OF 2005)
M/s. S. M. Constructions Co.
VERSUS
…Plaintiff
M/s. National India Contractors and
Engineers & Ors.
...Defendants
Ms. J. M. Siddique, ld. Advocate for decreeholder.
None for judgment debtor.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.84,
O R D E R
(Delivered on 14th January, 2026)
1) The present notice of motion is taken by the defendants for
‘staying the warrant of attachment’ of immovable property issued
under order XXI Rule 54 of Code of Civil Procedure dated
16/12/2010, being the attachment as null and void and not proper.
Also for the reason that ‘statement of interest’ amount and claim is
excess than what is warranted as per contract. Thus, warrant of
attachment is unlawful and one sided. Hence, deserves to be set
aside. Supported by affidavit of defendant No.3 Faruk Usman Gani
Khatri. Hence, prayed to allow the notice of motion.
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Notice of Motion No.3705/2019
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2) Vide reply, plaintiff strongly resisted the notice of motion
for the reason that it is vexatious and non maintainable and contrary
to the facts and law. Thus, denied all the contentions prayed by
defendant No.3 and prayed to dismiss the notice of motion.
3) Rejoinder by the defendants dated 29/11/2019,
reiterating, confirming the averments made in the notice of motion
after going through the affidavit in reply tendered dated 09/10/2019
and contended that one of the partner of the firm Mr. Sarvarali Abdul
Majid Khan expired. As legal heirs are not brought on record, hence,
prayed to allow the notice of motion and stay the execution
proceeding inter alia attachment warrant.
4) Following points arises for my determination to which I
have noted my findings with reasons thereon to each one as under :-
SR.NO. POINTS FINDINGS
1 Does the order of attachment passed by
my learned Predecessor or execution
application required to be stayed ?
No.
2 What Order? Notice of Motion
is Dismissed.
R E A S O N S
5) When called, none present on behalf of the judgment
debtor/original defendants. Heard learned Advocate Ms. J. M.
Siddique, who stated that she herself is the decreeholder/original
plaintiff.
6) Court is utterly shocked and surprised that the present
notice of motion is pending since more than 5 years and having age
nearly 7 years.
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Notice of Motion No.3705/2019
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7) It is apprised that defendants after filing notice of motion,
never turned up to the Court to prosecute the notice of motion in
accordance with law. The fact remains, being this is the execution
application, it must be on ‘Top Priority’ for disposal. If the fruits of the
decree is not given to the decreeholder, it is the futile exercise to file
suit and obtained the decree.
8) Taking into mind, the said fact, I have perused the case
papers especially the notice of motion whereby without specifying
details, by taking vague stand contended that the statement of
interest and the claim made in the execution application is not, what
has been warranted. Thus, on a vague statement blanket stay has
been sought. However, death certificate is tendered showing date of
death of Usmangani Jaffarali Khatri defendant No.2 appears to be
died on 25/04/2017.
9) It is apprised by the learned Advocate for plaintiff that
defendant No.2 is dead and grievance made that legal heirs of Mr.
Sarvarali Abdul Majid Khan are not brought on record.
10) It is rightly pointed out that until and unless fact of death
is brought to the notice of Court or the decreeholder, how one can
know whether the judgment debtor has died or is alive ? No proof
has been tendered to show that the fact about either of a death of
defendant No.2 or Mr. Sarvarali Abdul Majid Khan as the case may be
is duly communicated to the Court or the defendants either during
pendency of trial or in execution, as the case may be. Thus, it appears
that stand taken in the supporting affidavit appears to be vague,
taken with a view as a convenience. Hence, I do not find any merits
in the notice of motion.
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Notice of Motion No.3705/2019
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11) Since long after tendering notice of motion dated Nil, July
2019, thereafter, nobody turned up to prosecute the notice of motion
in accordance with the law since last nearly seven years especially in
the light when I came across the name of learned Advocate Balbheem
Patil, who is regularly appearing before this Court and other Courts.
It is the experience of the Court. Hence, notice of motion is required
to be dismissed by saddling costs of Rs.50,000/- being false and
frivolous & non prosecuted as execution application is pending since
last 7 years being dragged & protracted.
12) Hence, I noted my findings to the Points No.1 and 2
accordingly and proceed to pass following order :
ORDER
1. Notice of Motion No.3705 of 2019 is dismissed with costs of
Rs.50,000/- (Rupees Fifty Thousand Only).
2. The payment of costs is condition precedent.
3. The payment of costs be paid within Four (04) weeks from the
date of passing of this order/uploading of this order to the
decreeholder, else it would be recovered in the execution
application towards ‘interest’ on the principal amount to be
recovered by the decreeholder.
4. Notice of motion No.3705 of 2019 is disposed of accordingly.
(Dictated, delivered and pronounced in open Court)
(SANJIV PRABHAKAR PINGLE )
JUDGE, CR NO.84,
Date : 14/01/2026 CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
Dictated on : 14/01/2026.
Transcribed on : 14/01/2026.
Signed on : 16/01/2026.
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Notice of Motion No.3705/2019
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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 Stenographer16/01/2026 05.30 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
14/01/2026
JUDGMENT / ORDER signed by P.O.
on
14/01/2026
JUDGMENT / ORDER uploaded on 16/01/2026
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