The court dismissed a notice of motion seeking to set aside an ex-parte decree. The court held that once the review petition was dismissed and the stay amount was not deposited, the decree stood confirmed, rendering the application without substance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
:1:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN INSOLVENCY
NOTICE OF MOTION NO. 55 OF 2005
IN
INSOLVENCY NOTICE NO. N/26 OF 2005
RE: Narendra Gokani ...Judgment Debtor
Ex-parte :
Famous Cine Laboratories and
Studios Ltd ....Judgment creditor
Mr. R.K. Thakkar for judgment creditor.
Mr. Pankaj R. Thatte for judgment debtor.
CORAM: S.U. KAMDAR, J.
DATED: 18TH APRIL, 2006.
P.C. :
1. The present application is taken out on
the ground that the decree passed is an ex-parte
decree dated 5.4.1999 and the application was
taken out for setting aside the same. The
ex-parte decree dated 5.4.2005 was sought to be
set aside by Notice of Motion no. 116 of 2000.
:2:
The said motion was dismissed for default by an
order dated 30.1.2001 passed by the learned single
Judge. However by an order dated 12.10.2001 in
Notice of Motion no. 2427 of 2001 the said motion
was restored and ultimately on 23.3.2004 an order
was passed recording the statement of the judgment
debtor that he will deposit in court a sum of Rs.3
lacs within a period of 8 weeks. The learned
judge had passed an order that if the deposit is
made motion to be made absolute and the decree to
be set aside. If the amount is not deposited
motion to stand dismissed.
2 Admittedly there is no deposit of the
amount. However against the order dated 21.3.2004
an appeal was preferred being Appeal (L) No. 504
of 2004. The learned counsel for the judgment
debtor withdrew the appeal which has been recorded
by the division bench in its order dated 5.8.2004
with liberty to the judgment debtor to apply for
review petition. The learned counsel for the
judgment debtor states that pursuant thereto an
application was made for review of the order being
:3:
Review petition no. 5 of 2005. The Review
petition was not disposed off and therefore this
court by an order dated 7.2.2006 passed in the
present notice of Motion gave time on the
condition of cost of Rs.5000/- to be paid to the
judgment creditor. Today the Review Petition is
already disposed off and by an order dated
16.3.2006 the said Review petition has been
dismissed. In my opinion once the Review petition
having been dismissed the ex-parte decree has
stood confirmed by virtue of non-deposit of Rs. 3
lacs. In that light of the matter there is no
substance in the present Notice of Motion. Notice
of Motion dismissed accordingly. No order as to
costs.
sd/-
*******
Narendra Gokani
Famous Cine Laboratories and Studios Ltd
S.U. KAMDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court