Order 5

Order Details: Order below exhibit
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMON ORDER BELOW EXHIBIT NOS. 25 AND 29
IN
EXECUTION APPLICATION NO. 03 OF 2020
IN
CASE NO.CC/III/41 OF 2011
(On the file of Co-operative Court No. III, Mumbai)
Mr. B. S. Rath ... Decree Holder/ Org. Disputant
Versus
The Jai Ganesh CHS Ltd. Ganesh Bhavan
Thru its Secretary Anthony Rodricks
...Judgment Debtors/org Opponents
CORAM : HIS HONOUR SHRI A.K.KALE.
Adhoc Judge,City Civil Court and
Additional Sessions Judge,
Mumbai.
(C.R. NO.63).
DATE : 04-04-2026.
Ms. Joyce S. Rath, Advocate for Decree Holder.
Smt.Snehal Marathe, Advocate for the Judgment Debtors.
ORDER
1. The praecipe , Exhibit -25 is filed by the Decree Holder and
it is submitted that to issue letter to the concerned bank of Judgment
Debtor as per order dtd. 23-04-2024 for inquiry as “how much amount
is lying in the accounts of Judgment Debtor Society, which are attached
under the present Execution proceedings” and the same be made
available to the Decree-Holder expeditiously along with the bank reply
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incorporating Society's accounts, records/statements. The order was
passed but no letter has been issued as per order. The Judgment
Debtor’s Managing Committee has been Charge-sheeted by the
Government agencies for Recovery and Restoration of Rs.57,59,505/- of
members contributions into the Society Accounts. It is further requested
for the directions be given to the Registry to issue to the Decree-Holder
certified copies of Court's letter to the Judgment Debtor's Bankers and
their Reply to enable the Decree-Holder to take appropriate steps for the
recovery of rent arrears which have now accumulated to approximately
Rs.25,00,000/- plus.
2. The Decree-Holder also filed additional documents with
Exhibit-26 and pray for direction to the Judgment Debtor to bring the
passbooks before this Court and make a complete disclosure of the
Society Accounts and assets which is to the knowledge of the General
Body and Auditor of the Society.
3. The advocate for the Judgment Debtor submitted written
submissions vide Exhibit -27. It is submitted that, the application filed
by the Decree Holder Exhibit-25 is unsustainable and deserves to be
dismissed in the light of order passed by the Hon’ble High Court on 26-
04-2024. As per para-9 of the order, the Hon’ble High Court has vacated
the order of attachment. The order passed by the this court dtd. 23-04-
2024 and further proceedings shall be put in abeyance and sine die in
view of the order passed by the Hon'ble High Court on 26th April 2024 .
The said order overrides the effect of order dated 23rd April 2024
passed by this court. Therefore, the application filed by the Decree
Holder deserves to be dismissed. It is further submitted that, the
Decree-Holder filed one more application annexing an affidavit filed by
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the Judgment-Debtor before the Hon’ble High Court. It is the case of the
Decree-Holder that, the Judgment Debtor failed to deposit the amount
as per its undertaking given to Hon'ble High court. The Hon'ble High
Court in its order directed to the Judgment Debtor as,, "The Society
shall file an undertaking that they shall deposit any such amount with
the Court within the time stipulated by the Court on hearing the present
petition.” The petition is yet to be heard finally, therefore, there is no
question of depositing any amount by the Judgment Debtor. Infact, the
spirit of the undertaking as per the order of the Hon'ble Bombay High
Court is that the assurance has been given by the Judgment Debtor to
the court that if any such order is passed for depositing money, then the
Judgment Debtor shall deposit money as per the undertaking given. The
Decree Holder has complete misconstrue and misinterpreted the order
passed by the Hon'ble High Court. It is therefore prayed to dismiss the
application of Decree Holder. The advocate for the Judgment Debtor
filed copy of Writ Petition(ST) No. 12709 of 2024 which filed by
Judgment Debtor before the Hon’ble High Court challenging the order
dated 21-11-2023.
4. The advocate for the Decree Holder filed praecipe Exh.29
for direction to the Judgment Debtor. As per order of this court, it is
essential that copy of letter addressed to the bank of the Judgment
Debtor be made available to the Decree-Holder alongwith information
received showing Society's records of deposits and withdrawals, bank
statements etc from year 2018. The Execution Proceedings is not
stayed by any court. The decree dtd. 13-2-2019 is valid and subsisting.
There are two Division Bench Orders upholding the Execution
Proceedings. For speedy, just and appropriate action required to act on
Order dt 23/04/2024. When Court posted the matter for Order on Exh.
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25 on 03-02-2026 the advocate for the Judgment Debtor at belated
stage filed written submissions at Exh.27 when there is no such
provision for execution proceedings. The copy of writ petition produced
by the Judgment Debtor is irrelevant to the Execution Proceedings. It is
filed to mislead this Execution Court to obstruct administration of
justice to Decree-Holder . It is therefore, prayed for directing the
Judgment Debtor to supply the copy of Exh.27. To supply the copy of
the amended writ petition, to make complete disclosure of Judgment
Debtor’s bank account and assets, to make complete disclosure of all
other litigation and proceeding, to produce the copy of three tenders
called by the Judgment Debtor for Repair Project amounts for which
were made in 2018 by the General Body, to produce list of amounts
collected for Redevelopment project as per Agenda in the Special
General Body Meeting held on 28 December 2025, to produce the copy
of the minutes and Resolution of the said meeting and to issue any
other directions.
5. The Decree-Holder further filed pursis Exh.30 with
documents with the submission that, no court has set aside decree dtd.
13-02-2019 which is not open to Appeal or challenge as it is not an Ex-
parte Order and no Court has granted any stay on the Execution
proceedings to the Judgment -Debtor.
6. The advocate for the Judgment Debtor filed reply to the
above praecipe and pursis filed by the decree holder. It is submitted
that no provision is there under the Bombay City Civil Court Rules and
CPC to file the praecipe and seek various reliefs before this court. If a
party want to seek any relief, appropriate application as provided by
law are required to be filed and such praecipe cannot be entertained in
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place of applications. In that contest even reply is also not warranted to
the praecipe filed by the Decree Holder. The Hon’ble High Court by
order dtd.26-04-2024 in Writ Petition ordered that , "...no coercive steps
shall be taken for recovery of the amount of Rs.9,09,287/- under the
impugned order..." which itself suggest that this Hon'ble Court need not
proceed further and pass such orders which would amount to taking
coercive steps, more particularly order of Eviction, which would amount
to taking coercive step. The Hon'ble High Court has observed as "...in
that view of the matter, exercising the powers of this Court under the
provisions of Article 227 of the Constitution of India, order dated
21.02.2020 stands vacated with immediate effect....", therefore it is
further clear that part of impugned order as referred in the said
praecipe relating to freezing of bank accounts, is already vacated. So
far as seeking directions in para-3 of praecipe that there is no
provision under the City Civil Court rules nor in Civil Procedure Code,
1908 to seek prayers in praecipe nor this Court is required to pass any
order based on such praecipe . The Decree Holder is required to file
appropriate applications. It is therefore, prayed to reject the praecipe .
7. Perused praecipe, pursis, reply, record and heard both the
sides. .
8. In praecipe Exh.25 the Decree Holder prayer for issuance
of letter to the Bank as per order below Exhibits 4, 6 and 8 dtd. 23-04-
2024. By Exhibit-29 the Decree Holder pray for production of certain
documents from the Judgment Debtor and for disclosure of certain
information. It is seen from the record that an application Exhibit-15
was filed by the Decree Holder for interim relief directing the Judgment
Debtor to pay Rs.11,00,000/-. The said application was decided by my
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Ld. Predecessor on 21-11-2023. My Ld. Predecessor allowed the said
application and directed the Judgment Debtor to pay Rs.9,09,287/- to
the Decree-Holder and also directed to continue to pay Rs.50,400/- per
month for further period of six months from 05-12-2022 till 04-07-
2024. My Ld. Predecessor held that the Decree Holder is entitled for
interim relief as granted by the Co-operative Court in Award dtd.13-02-
2019. My Ld. Predecessor held that the Judgment Debtor is liable to pay
Rs.5,76,000/- as license fees for 1st year, Rs.3,02,400/- for six months
of the second year for alternative accommodation and they are also
liable to pay other charges of Rs.30,887/-. Accordingly, the Judgment
Debtor are held liable to pay total sum of Rs.9,09,287/-. Thereafter, an
order came to be passed on Exhibits 4 ,6 and 8 dtd.23-04-2024. By the
said order it is directed to issue letter to the concerned bank directing to
inform as to how much amount is lying in the accounts of the Judgment
Debtor society which are already attached under present execution. It is
held in the order that in order to satisfy the decree whether the amount
lying in the said account which are already attached is sufficient or not
and therefore, it was held that it is necessary to issue letter to the
concerned bank. Various prayers were made in the application Exh.4
including realization of amount of Rs.33,337/- from the attached bank
accounts. It was held that the said amount of Rs.33,337/- is already
included in order Exh.15. So while deciding the application it was
directed to issue the letter to the concerned bank inquiring about the
balance lying in the accounts which are attached. The order Exh.15 has
been challenged by the Judgment Debtor before the Hon’ble High
Court. The Hon’ble High Court by order dtd.26-04-2024 in Writ
Petition(ST) No.12709 of 2024, ordered that no coercive steps shall be
taken for recovery of amount Rs.9,09,987/- under the impugned order
from the society until the Writ Petition is heard and decided.
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9. In order below Exhibits 4,6 and 8 dtd. 23-04-2024 it is held
that, the bank accounts of the society are already attached under
execution. It is further held that by way of order below Exhibit-15 the
Ld. Predecessor already directed to pay Rs. 9,09,287/- to the Decree
Holder. It is further held that, already bank accounts are attached,
therefore, it is necessary to inquire with the bank, whether the amount
lying in the accounts of Judgment Debtor is sufficient to satisfy the
decree and on the basis of the said reasons the order is passed to issue
letter to the bank informing as to how much amount is lying in the bank
account. The Hon’ble High Court in the above order in Writ Petition
held as, “ In that view of the matter, exercising the powers of this court
under the provisions of Article 227 of the Constitution of India, order
dtd. 21-02-2020 stands vacated.” The Hon’ble High Court also held as, “
Be that as it may, considering that the Executing Court has now passed
an order against which a substantive is maintained by the society, the
earlier order of attachment of the bank accounts ought to have been
vacated.” So it is seen that, the Hon’ble High Court has vacated
attachment of bank accounts by order dtd. 23-04-2024. It is directed to
issue letter to the bank inquiring about the funds lying in the accounts
which are attached. Now the attachment of the accounts has been
vacated by the Hon’ble High Court. The issuance of the letter to the
bank has been directed in pursuant to the order passed below Exhibit-
15. As discussed above, in respect of the said order the Hon’ble High
Court has directed that no coercive steps shall be taken for recovery of
amount as per order Exhibit-15. Since the order dtd. 23-04-2024 is
passed in pursuant to the order Exhibit-15, the said order cannot be
proceeded as the attachment of accounts is already vacated and the
Hon’ble High Court directed not to take coercive steps. So the issuance
of the letter to the bank will automatically amounts to taking coercive
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steps as per order below Exhibit-15. Moreover, it is a matter of judicial
discipline that once a matter is seized before the higher court, it is
expected that the inferior court should not take any action in respect of
the matter which is subjudice before the higher court.
10. The Judgment Debtor further pray for directing the
Judgment Debtor to bring the passbook of society before this court and
to make complete disclosure of the society accounts and assets which is
to the knowledge of the General Body and auditor of the society.
11. By the Exhibit -29, it is prayed by the Decree Holder that to
direct the Judgment Debtor to make the complete disclosure of all the
other litigation and proceedings to make debt not being made available
to creditor. He has further prayed for directing the Judgment Debtor to
produce copy of the three tenders called by the Judgment Debtor for
Repair Project amounts for which were made in 2018 by the General
Body, to produce list of amounts collected for redevelopment project as
per Agenda of meeting dtd. 28-12-2025, to produce copy of minutes of
the said meeting and resolution passed in the said meeting. As
discussed above, the Hon’ble High Court by order in Writ Petition
directed not to take coercive steps for recovery of amount of Rs.
9,09,287/- as per order Exhibit-15. The Hon’ble High Court in the said
order directed society to file an undertaking that they shall deposit any
such amount with the court within the time stipulated by the court on
hearing of petition. The Decree-Holder filed copy of undertaking dtd.
03-05-2024 alongwith Exhibit-26. It is seen from the said undertaking
that the Judgment Debtor has submitted undertaking before the Hon’ble
High Court as directed in the Writ Petition. As discussed above, the bank
accounts which were attached are vacated by the Hon’ble High Court.
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The Hon’ble High Court directed that, no coercive steps to be taken for
recovery of amount. The Decree-Holder praying for disclosure of bank
accounts from the society. As per order of the Hon’ble High Court in
Writ Petition, the Judgment Debtor cannot be directed to disclose the
account. The Decree-Holder prayer in respect of the direction to the
Judgment Debtor to produce the copy of tender, minutes of General
Body Meeting, list of amount collected for redevelopment, copy of
resolution. The Decree-Holder has nowhere disclosed as to under which
provision the said information can be called and for what purpose it is
to be called. It is also nowhere clarified by the Decree-Holder as to how
this court in execution proceeding can regulate or direct to the society
in respect of their day to day business. Therefore, the said prayer of
decree holder also cannot be granted. Ad discussed above the Hon’ble
High Court has passed an order that no coercive steps shall be taken for
recovery of amount in the impugned order until the Writ Petition is
decided. Therefore, in view of the direction of the Hon’ble High Court it
will not be proper to pass any order against the Judgment Debtor as
sought by the Decree-Holder. The praecipe Exhibit-25 and 29,
therefore, deserves to be rejected. Hence, I proceed to pass following
order:
-ORDER-
Praecipe Exhibit Nos.25 and 29 stands rejected and disposed off
accordingly.
(A.K.Kale)
Ad-Hoc Judge
City Civil Court,
Date : 04-04-2026 Gr. Bombay.
Dictated on : 24-03-2026 and 04-04-2026
Typed on : 24-03-2026 and 04-04-2026
Checked on : 04-04-2026
Signed on : 06-04-2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06-04-2026 4.20 p.m. K.M.Rana
Name of the Judge (with Court Room
no.63)
HHJ Shri A.K.KALE
(Court Room No.63).
Date of Pronouncement of Judgment/Order 04-04-2026
Judgment/Order signed by P.O. on 06-04-2026
Judgment/Order uploaded on 06-04-2026
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