Single judge upheld the issuance of execution notice under Order 21 Rule 22 CPC, ruling that the objection regarding dismissal of the suit was tenable only if raised by defendants when tendering the undertaking, which they failed to do.
Notice to remove office objection is made absolute with no order as to costs.
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.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE NO. 1013 OF 2011
IN
SUIT NO. 279 OF 2005
Pushp Holdings Ltd.
…Plaintiff
Versus
M/s. Rhea Arts and Ors. …Defendants
Ms. T.M. Sindwa i/by S.G. Lakhani for applicant/plaintiff.
Mr. Sandesh Patil i/by Mr. S.R. Saudagar for defendant nos. 1 and 4.
CORAM : R.D.DHANUKA J. DATED : SEPTEMBER 04, 2013.
P.C.
The learned counsel for the Judgment Debtor No. 1 and 4 raises preliminary objection about the maintainability of the notice and submits that by order dated 21st December, 2004 passed by the Prothonotary and Senior Master time to remove office objection was granted till 11th January, 2005 on a condition that if the objections were not removed by the prescribed date, plaint to stand rejected under Rule 986 of the High Court (O.S.) Rules. It is submitted that since the plaintiff did not comply with the said order and did not remove office objections, the subsequent order passed by the Prothonotary and Senior Master granting extension of time to the plaintiff to remove office objection was nullity and without jurisdiction.
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by the Prothonotary and Senior Master, Plaintiff had removed all office objections and got the suit numbered. The contempt proceedings were filed by the plaintiff against the defendants. In the said contempt proceedings (15 of 2005), defendants who were impleaded as contemnors filed an undertaking in the said proceedings and undertook to this court to pay to the plaintiff sum of Rs.1,10,00,000/- with interest thereon @ 18% p.a., in accordance with the schedule annexed thereto in full and final settlement of the plaintiff's claim in the said suit. It was provided in the said undertaking that in the event of the defendants committing any default in payment in accordance with the schedule appended thereto, plaintiffs shall be entitled to decree in the suit in the sum of Rs.1,80,00,000/- with interest thereon @ 18% p.a. from the date of filing of the suit till realization along with costs. It is not in dispute that the defendants committed default in making payment of various amounts described in the schedule to the said undertaking and as a result thereof, the default clause recorded in clause 2 of the said undertaking came into operation and thereby plaintiffs became entitled to decree in the suit against the defendants in the sum of Rs.1.80 Crores or balance as due on any default with interest thereon at the rate of 18% p.a., from the date of filing of the suit till realization along with cost. Plaintiffs have applied for execution of the decree against defendants pursuant to the said undertaking tendered by the defendants on 18th February, 2005. No such objection was raised by the defendants while tendering such undertaking to this court that the suit itself was dismissed by the Prothonotary and Senior Master under Rule 986 of the High Court (Original Side) Rules. It is not in dispute that the Judgment Debtors did not apply for withdrawal of the said undertaking submitted by the Judgment Debtor in this court on the ground that the suit itself was dismissed and no
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decree can be passed pursuant to the order passed by this court while accepting the said undertaking submitted by the Judgment Debtors. In my view, there is no substance in the submissions thus made by the learned counsel appearing for the Judgment Debtors that the application for execution of the decree itself is not maintainable and thus notice cannot be issued under Order 21 rule 22 of the Code of Civil procedure. In my view, plaintiff has made out a case for issuance of the notice under Order 21 rule 22 and has rendered sufficient reasons for issuance of such notice. No other submissions have been advanced by the learned counsel for the Judgment Debtors. Notice is accordingly made absolute. There shall be no order as to costs.
3 issues framed by the court
Whether the application for execution of the decree pursuant to the undertaking is maintainable when the suit was dismissed for non-removal of office objections.
Whether the subsequent extension of time granted by the Prothonotary and Senior Master was a nullity without jurisdiction.
Whether a notice under Order 21 Rule 22 CPC can be issued under these circumstances.
2 provisions across 2 enactments
Pushp Holdings Ltd.
M/s. Rhea Arts and Ors.
R.D. Dhannuka
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
