The High Court of Judicature at Bombay declined to interfere in a civil execution matter where the Court below allowed the Decree Holder to file 'say' after filing an objection. The Single Judge held that despite procedural irregularities, writ jurisdiction under Article 227 was not justified.
Writ petition dismissed. No 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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951 wp.717.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 717 OF 2014
SUNDARLAL BABULAL KABRA
VERSUS SITARAM SHIVRAM RATHOD AND ANOTHER
Advocate for Petitioner : Mr. Abhijeet A. Pimpalwadkar.
CORAM : S.V.GANGAPURWALA J. DATE : 24th January, 2014.
P.C.:
. The application allowing the Decree Holder to file say on objection petition is allowed. Mr. Pimpalwadkar, learned counsel for the Petitioner states that the Petitioner has filed objection to the execution of the decree. The Court on 8th August, 2012 passed order of ‘no say’ against the Decree Holder. Thereafter, without filing an application to set aside the said order, the Decree Holder filed an application seeking time to file say vide Exhibit – 58. Thereafter, on 3-4 occasions, the Decree Holder sought time to file say, on the ground of illness, without even filing an application for setting aside ‘no say’ order nor filed say. The present Petitioner led his examination-inchief in support of the objection petition. The Decree Holder wanted to cross-examine the Petitioner. An objection was raised on the side of the Decree Holder to cross-examine in absence of any say. At that juncture, the instant application is filed for setting aside ‘no say’ order. The said application is not bonafide one. No sufficient cause is stated in the said application. The Court while allowing the application has also not given any
2 951 wp.717.14
reason and has only stated that in the interest of justice, the application is allowed. The Decree Holder has not prosecuted the objection filed by the Petitioner diligently and as such, the application ought not to have been allowed.
2 I have gone through the order. The Respondent No.1 – Decree Holder is seeking execution of his decree. The present Petitioner has filed objection petition to the same wherein even evidence is being led. The rights of the parties in immovable properties are involved in the subject matter. In the earlier application, it has been stated that the Decree Holder could not file his say because of his ill-health. The Court ought to have passed more elaborate order. However, considering the discretion exercised by the Court, I am not inclined to entertain writ jurisdiction under Article 227 of the Constitution of India.
[ S.V.GANGAPURWALA, J. ]
ndm
2 issues framed by the court
Whether to exercise writ jurisdiction under Article 227 to set aside the 'no say' order in a civil execution proceeding.
Whether the Decree Holder's dilatory conduct and lack of sufficient cause justify the setting aside of the order.
Sundarlal Babulal Kabra
Sitaram Shivram Rathod
S.V. Gangapurwala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
