Dr. Rustum Sam Boyce vs M/S Astrix Reality Thr. Its Partner and Anr. — Bombay HC (2025) — LawSathi Research

Dr. Rustum Sam Boyce vs M/S Astrix Reality Thr. Its Partner and Anr. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Writ petition disposed of without being entertained on merits; executing Court requested to decide Misc. Application No.624 of 2024 (Order XXI Rule 58) preferably within three months of communication of the order; meanwhile the attachment under the order dated 30 April 2024 may continue, but the executing Court may not take further steps in execution until that application is decided.

Issue for consideration

Whether there is any propriety in entertaining the writ petition when the Petitioner has already filed an application under Order XXI Rule 58 before the executing Court. +2 more

Court's answer

Since the Petitioner had already filed an application under Order XXI Rule 58 before the executing Court, there was no propriety in entertaining the instant writ petition; the executing Court could instead be directed to decide that application expeditiously.

Ratio / Principle

Though the attachment of the property pursuant to the order dated 30 April 2024 may continue, the executing Court may not take further steps in execution till the application under Order XXI Rule 58 is decided.

Key takeaways

The executing Court was requested to endeavour to decide Misc. Application No.624 of 2024 as expeditiously as possible, and preferably within three months from the date of communication of the order.ratio¶23

Detailed headnote1 paragraphs

Bombay High Court (N.J. Jamadar, J.), Writ Petition No.2194 of 2024, disposed of on 12 February 2025 in Rustum Sam Boyce v. M/s. Astrix Reality through its Partner and Anr. The Petitioner had initially challenged the executing Court's order dated 7 December 2023 rejecting his application to be impleaded in execution proceedings (Darkhast No.647 of 2019), and, by amendment, the warrant of attachment issued on 30 April 2024 under Order XXI Rule 54 of the Code of Civil Procedure, 1908. Holding that, as the Petitioner had already moved the executing Court under Order XXI Rule 58 (Misc. Application No.624 of 2024, still sub judice), there was no propriety in entertaining the writ petition, the Court disposed of it, permitted the attachment to stand, but directed that no further steps in execution be taken until the Rule 58 application was decided, preferably within three months of communication of the order.

2025:BHC-AS:7020

905 wp 2194 of 2024.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2194 OF 2024

... Petitioner

Rustum Sam Boyce versus

M/s. Astrix Reality

through its Partner and Anr.

… Respondents

Mr. Nimay Dave with Mr. Sheroy M. Bodhanwalla, Mr. Akash Singh, Mr. Shreyas Thakur i/by M.S.Bodhanwalla and Co., for Petitioner. Mr. Sumit Kothari with Ms. Deepashikha Godbole, for Respondent No.1. Mr. Shashwat Rai i/by Keystone Partners, for Respondent No.2.

CORAM: N.J.JAMADAR, J.

DATE : 12 FEBRUARY 2025

P.C.

Heard the learned Counsel for the parties.

The challenge in this Petition was initially to an order dated 7 December

2023, whereby the application preferred by the Petitioner to implead him as a party to the execution proceedings being Darkhast No.647 of 2019 came to

be rejected. Post rejection of the said application, on 30 April 2024 the executing Court has issued warrant for attachment of the property under Order XXI Rule 54 of the Code of Civil Procedure, 1908. The said order has also been assailed by carrying out amendment in the Petition.

In the meanwhile, the Petitioner has also preferred an application purportedly under Order XXI Rule 58, being Misc. Application No.624 of 2024.

Learned Counsel for the Petitioner submits that, that application is still

SSP 1/2

905 wp 2194 of 2024.doc

subjudice. Since the property of the Petitioner has been attached pursuant to the order dated 30 April 2024, the Petitioner has an apprehension that further steps may be taken by the executing Court in execution of the decree impairing the rights of the Petitioner, without deciding the application under Order XXI Rule 58 of the Code.

Since the Petitioner has already filed an application under Order XXI Rule 58 of the Code before the executing Court, there is no propriety in entertaining the instant Petition. The executing Court can be directed to decide the application under Order XXI Rule 58 as expeditiously as possible. In the meanwhile, though the attachment of the property pursuant to the order dated 30 April 2024 may continue, the executing Court may not take further steps in execution till the application under Order XXI Rule 58 is decided.

The executing Court is requested to make an endeavour to decide the said application i.e. 624 of 2024 as expeditiously as possible and preferably within a period of three months from the date of communication of this order. 7. The Writ Petition accordingly stands disposed.

( N.J.JAMADAR, J. )

SSP 2/2

Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 13/02/2025 11:26:55