Interim Order 2

Order Details: Order on Exhibit
Pdf Text: (CNR : MHSCA3-000544-2024)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT 11
IN
EXECUTION APPLICATION No. 65 OF 2025
IN
MESNE PROFIT APPLICATION No. 6 OF 2009
IN
T.E. & R. SUIT No. 36/50 OF 2005
M/s. Blue Fox Hotels Pvt. Ltd. … Appellant/
Decree Holder/original plaintiff
Versus
Bombay Mercantile Co-operative Bank Ltd. ... Respondent/
Judgment Debtor/defendant
Divyakant Mehta and Associates, Advocate for plaintiff
Bhatia and Bhkhari Associates, Advocate for defendant
Coram : Saritha Vishwambharan
Judge, C.R.No.32 (B.B.)
Date : 03/10/2026
ORAL ORDER
1] This is an application filed by judgment debtor for
setting aside no say order passed below exhibit 1 on 30/01/2026.
2] Decree holder filed say at exhibit 13. Heard Ld.
Advocate for judgment debtor. Ld. Advocate for decree holder
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submitted to consider as heard.
3] According to judgment debtor, they have filed Misc.
Appeal No. 166 of 2011 challenging the judgment dated 04/04/2019
passed in Mesne Profit Application and has also filed Marji
application for setting aside judgment and decree dated 05/08/2023.
The matter is subjudice before Hon'ble Appellate Bench. It is
submitted that the reply is already ready but for the reason
mentioned in application dated 18/04/2026, no reply order passed
on 30/01/2026 be set aside.
4] Decree holder objected the application on the ground
that the execution is filed for executing decree dated 04/04/2019
passed in Mesne Profit Application No. 6 of 2009. The execution
application is pending for hearing since July 2025. Ample
opportunity was granted to judgment debtor for filing say. Due to
inaction of judgment debtor, no reply order was passed by the Court.
No sufficient reason is mentioned for setting aside no reply order.
Judgment debtor has also not provided any documentary evidence as
to why no say order has to be set aside. It is further submitted that in
Misc. Appeal no stay order is passed by the Hon’ble Appellate Bench.
Mere pendency of proceeding initiated by judgment debtor will not
restrict respondent for filing reply in present application. Only
personal difficulty is mentioned for not filing reply. For all the above
reasons, decree holder prayed to reject the application.
5] Vide application below exhibit 14, judgment debtor
sought permission of the Court for filing rejoinder. The said
application was allowed by the Court as say to the execution
application was not annexed with present application. Judgment
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debtor has annexed say to execution application alongwith rejoinder
at exhibit 15.
6] Perused record. The decree is dated 05/08/2023 passed
in Misc. Appeal No. 166 of 2019 in Mesne Profit Application No. 6 of
2009 in TE& R Suit No. 36/50 of 2005. The execution is filed in the
year 2025. On 05/08/2025, judgment debtor appeared. No say order
was passed by the Court on 30/01/2026. Already sufficient time was
granted to judgment debtor to file say on execution application. Vide
the present application, judgment debtor has submitted to consider
reason mentioned in application exhibit 12 which is dated
18/04/2026. In the said application, it is mentioned that due to
personal difficulty signatory is unavailable in morning session and
therefore, the matter be kept in the second session. That application
was filed by the Court as the application itself was filed in the second
session. Vide the present application, judgment debtor is seeking to
set aside no say order. The reason of personal difficulty as mentioned
in exhibit 12 cannot be the reason for not filing say to the execution.
7] According to judgment debtor, he has filed Misc. Appeal
against the order and judgment which is sought to be executed. Even
if the appeal is pending, there is no stay to the said proceeding. The
Marji application was decided by the Hon’ble Appellate Bench on
17/02/2026. The filing of Marji application appears to be the reason
why judgment debtor did not file reply on time. The present
proceeding is for execution of mesne profit judgment. Though appeal
is filed, there is no stay. The decree of the Court will be of no use
unless it is executed. Even then, inorder to afford opportunity, no say
order needs to be set aside. Accordingly, the following order :-
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ORDER
1] Application is allowed.
2] No say order passed below exhibit 1 against judgment
debtor is set aside.
Date : 03/10/2026 (Saritha Vishwambharan)
Place : Bandra, Mumbai Judge, Court No.32
Bandra Branch, Mumbai
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CERTIFICATE
I affirm that the contents of this P.D.F. file order is word to
word same as per original order.
Name of Steno :- Arpana S. Karande, Steno (Grade-2)
Court Name :- Saritha Vishwambharan
Judge, Court Room No.32
Small Causes Court
Bandra Branch, Mumbai
Date of order :- 03/10/2026
Signed by PO on :- 03/10/2026
PDF uploaded on :- 03/10/2026
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