Dismissed¶¶39

Krishnabai Haresh Kewlany v. Hemant Amarchand Chhadva Partner M/S. Bright Enterprises and Ors.

Bombay HC20 Jan 2025WP/505/2025

Case brief

AI extract

What is this about?

Article 227 writ petition against execution-stage order (possession warrant and Order XXI Rule 41 CPC asset-disclosure notice) in Execution Application No.414 of 2024 in L.E. & C. Suit No.43 of 2022, Small Causes Court Mumbai; executing court cannot go behind the decree; grievance actually against eviction decree dated 14 February 2024 (eviction plus Rs.50,59,125 with 9% interest; mesne profits inquiry under Order XX Rule 12(c)); writ dismissed with no order as to costs; petitioner left free to pursue other proceedings against the decree.

What did the court decide?

Writ Petition dismissed with no order as to costs; as regards the Petitioner's contention against the decree dated 14 February 2024, she is at liberty to adopt appropriate proceedings in accordance with law. ¶¶39

Krishnabai Haresh Kewlany vs Hemant Amarchand… — Writ and Judicial Review | Bombay HC (2025)

What the court decided

AI extract

Outcome

¶¶39

Issue for consideration

Whether the impugned order passed in execution proceedings (issuance of possession warrant and notice under Order XXI Rule 41 CPC) warranted interference by the High Court under Article 227 of the Constitution of India. +1 more

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Court's answer

Since the impugned order was passed in execution proceedings and the executing court cannot go behind the decree, no interference in the impugned order is warranted under the jurisdiction of this Court under Article 227 of the Constitution of India.

¶¶37

Ratio / Principle

It is settled legal position that the executing Court cannot go behind the decree.

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Detailed headnote1 paragraphs

Bombay High Court (Madhav J. Jamdar, J.), Writ Petition No.505 of 2025, decided 25 March 2025 — Krishnabai Haresh Kewlany v. Hemant Amarchand Chhadva (Partner, M/s. Bright Enterprises) & Ors.: The Petitioner, a Judgment Debtor, challenged under Article 227 of the Constitution of India the order dated 27 November 2024 passed by the learned Judge, Small Causes Court, Mumbai below Exhibit-15 in Execution Application No.414 of 2024 in L.E. & C. Suit No.43 of 2022, whereby a possession warrant was issued and notice was issued calling upon her to file an affidavit disclosing her assets under Order XXI Rule 41 CPC. Her real grievance, however, was against the decree dated 14 February 2024 in that suit, which decreed eviction from the suit premises (Shop Nos. 3 and 4, admeasuring 600 sq.ft. carpet area, R.C. Marg, Chembur, Mumbai) and payment of Rs.50,59,125/- with simple interest @ 9% per annum from 14.04.2024 till realization, and permitted a separate mesne profits inquiry under Order XX Rule 12(c) CPC. Holding that the impugned order had been passed in execution proceedings and that it is settled legal position that the executing Court cannot go behind the decree, the Court declined to interfere under Article 227 and dismissed the Writ Petition with no order as to costs, leaving the Petitioner at liberty to adopt appropriate proceedings in accordance with law against the decree.

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906-WP-505-2025.DOC

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.505 OF 2025

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Krishnabai Haresh Kewlany …Petitioner Versus Hemant Amarchand Chhadva Partner of M/s. Bright Enterprises & Ors. …Respondents

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Mr. A. A. Siddiquie a/w. Mr. Moin Chowdhari i/b. A. A. Siddhiquie & Associates, for the Petitioner.

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Mr. Manoj Harit a/w. Mr. Niket Harit i/b. Manoj Harit & Co., for the Respondent No.1.

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Mr. Hamid Mulla, AGP, for the Respondent No.4-State.

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CORAM: MADHAV J. JAMDAR, J. DATED : 25^th MARCH 2025

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P. C.:

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Heard Mr. Siddiquie, learned Counsel appearing for the

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Petitioner, Mr. Harit, learned Counsel appearing for the Respondent No.1 and Mr. Mulla, learned AGP appearing for the Respondent No.4-State.

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By the present Writ Petition filed under Article 227 of the Constitution of India, the challenge is to the order dated 27^th November 2024 passed by the learned Judge, Small Causes Court,

Page 1 of 4

Sonali

906-WP-505-2025.DOC

Mumbai below Exhibit-15 in Execution Application No.414 of 2024 in L.E. & C. Suit No.43 of 2022.

¶17

Perusal of the record shows that the learned Judge, Small Causes Court, Mumbai by order dated 14^th February 2024 passed in L.E. & C Suit No.43 of 2022 directed the eviction of the Petitioner

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from the suit premises and also further directed payment of amount of Rs.50,59,125/-. The operative part of the said order dated 14^th February 2024 reads as under:

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“ OPERATIVE ORDER

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The suit is decreed with costs.

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Defendants or anybody claiming on their behalf or through them; shall deliver vacant and peaceful possession of the Shop no. 3 and 4 , admeasuring 600 sq.ft. carpet area, Bright Enterprise, CTS no. 1722, 1722/1, R. C. Marg, Chembur, Mumbai – 400 074; which is more particularly described in plaint paragraph no. 1, within TWO MONTHS from today.

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Defendant shall pay an amount of ₹ 50,59,125/[In words Rupees Fifty Lakh Fifty Nine Thousand One Hundred Twenty Five only] to plaintiff within TWO MONTHS from today, details and breakup of which are mentioned in the paragraph no. of this judgment.

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Defendant shall also pay simple interest to plaintiff, on amount of ₹ 50,59,125/- @ 9% per annum from 14.04.2024 till realization of the amount.

Page 2 of 4

Sonali

906-WP-505-2025.DOC

Plaintiff may file separate inquiry to quantify mesne profit, for the period from expiry of time given to hand over possession, i.e. after two months of date of decree of suit till receipt of possession of the said premises; in view of Order XX Rule 12 (c) of Code of Civil Procedure, 1908.

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Decree be drawn accordingly.

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Declared in open Court, today on 14^th February 2024.”

¶30

By the impugned order dated 27^th November 2024 passed by the learned Judge, Small Causes Court, Mumbai below Exhibit-15 in Execution Application No.414 of 2024 in L.E. & C. Suit No.43 of 2022, possession warrant has been issued and notice has been issued calling upon the Judgment Debtor i.e. the present Petitioner to submit her affidavit disclosing about the assets as required under Order XXI Rule 41 of Code of Civil Procedure, 1908.

¶31

It is the contention of Mr. Siddiquie, learned Counsel appearing for the Petitioner that the said order dated 14^th February 2024 passed in L.E. & C. Suit No.43 of 2022 by which eviction decree has been passed is obtained by not disclosing the relevant documents. In effect, the Petitioner is aggrieved by the order dated 14^th February 2024 passed in said suit. The impugned order has

Page 3 of 4

Sonali

906-WP-505-2025.DOC

been passed in execution proceedings. It is settled legal position

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that the executing Court cannot go behind the decree.

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Accordingly, no interference in the impugned order is warranted under the jurisdiction of this Court under Article 227 of the Constitution of India.

¶38

As far as the contention which the learned Counsel appearing for the Petitioner has raised, the Petitioner is at liberty to adopt appropriate proceedings in accordance with law.

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The Writ Petition is dismissed, however, with no order as to

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costs.

¶41

[MADHAV J. JAMDAR, J.]

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Digitally signed by SONALI SONALI MILIND MILIND PATIL PATIL Date: 2025.03.27 10:01:33 +0530

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Page 4 of 4

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Sonali

Krishnabai Haresh Kewlany v. Hemant Amarchand Chhadva Partner M/S. Bright Enterprises and Ors.

Case brief

What is this about?

What did the court decide?

Krishnabai Haresh Kewlany v. Hemant Amarchand Chhadva Partner M/S. Bright Enterprises and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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