Bombay High Court
Dina Dora Sukhia (Since Deceased) ... vs Jimmy Dora Sukhia on 7 December, 2011
Bench: R. M. Savant
1 wp-4849-10
mmj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4849 of 2010
Dina Dora Sukhia (since deceased) through her LRS Dr. Mrs. Roshani
Farukh through her POA holder Farokh Phiroze Chinoy
.. Petitioner
Versus
Jimmy Dora Sukhia .. Respondent
Mr. V. S.Gokhale for the Petitioner
Mr. Vaibhav Patankar for the Respondent
ig CORAM : R.M.SAVANT, J.
DATE : 7th DECEMBER, 2011
ORAL JUDGMENT :
1 Rule. With the consent of the parties made returnable forthwith and
heard.
2 The above Petition takes exception to the Order dated 21-4-2010
passed by the Learned Civil Judge, Senior Division, Pune, by which Order,
the Learned Judge has rejected the Application Exhibit 21 in Special
Darkhast No.119 of 2006 filed by the Petitioner i.e the original Defendant,
for execution of the Order dated 4-10-2004 as not tenable.
3 It s not necessary to burden this Order with unnecessary facts.
Suffice it to say that an Order came to be passed on 6-8-1999 in Special
Civil Suit No.430 of 1995, whereby the Plaintiff was restrained from
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entering into the porch or verandah in the residential house of the
Defendant No.1
4 It appears that against the said Order dated 6-8-1999, an Appeal
from Order was filed being Appeal from Order No.831 of 2009 which
Appeal was admitted and ultimately came to be disposed of on 4-10-2004.
In the said Appeal, a statement was made that the heirs of the Defendant
No.1 i.e. the Respondent Nos.2 and 3 to the said Appeal would be made
available the same facility in the matter of parking of vehicle as was made
available to the Defendant No.1. The said statement has been recorded in
the said Order dated 4-10-2004. It is the case of the Petitioner herein that
the Plaintiff has not abided by the said statement made by the Counsel as
recorded in the order dated 4-10-2004. As the Respondent Nos.2 and 3
have not been allowed to park their vehicles, the Respondent Nos.2 and 3
therefore, applied for execution of the said Order dated 4-10-2004 and
invoked Order 21 Rule 32 of the Civil Procedure Code, for committing the
Plaintiff to Civil Prison. The said Application was numbered as Exhibit 21
which has been disposed of by the impugned order dated 21-4-2010. As
indicated above, the said application Exhibit 21 has been rejected on the
ground that it is not tenable as it is an Order passed and not a decree
which is executable.
5 The Learned Counsel for the Petitioner herein has drawn my
attention to Section 36 of the Civil Procedure Code. It is posited in Section
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36 that the provisions of this Code relating to the execution of decrees
(including provisions relating to payment under a decree) shall, so far as
they are applicable, be deemed to apply to the execution of the Orders
(including payment under an Order). Hence the finding of the Executing
Court that the said Application Exhibit 21 was not tenable cannot be
sustained in the light of the Section 36 of the CPC. However, even if the
said Application for execution is tenable, considering the fact that the
Petitioners have invoked Order 21 Rule 32 of the CPC, the Executing
Court would have to adjudicate upon the said Application on the
touchstone of the said provision as also sub Rule 5 of Rule 32 of the CPC.
It is only after the Executing Court is satisfied that there is a willful
default / disobedience of the said Order that the said provision under
Order 21 Rule 32 could be invoked. In that view of the matter, the
impugned Order is set aside and the matter is remanded back to the
Executing Court for a denovo consideration of Exhibit 21 in the light of
the observations made herein above. The contentions of the parties are
explicitly kept open for being agitated before the Executing Court.
6 Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
(R.M.SAVANT, J.)
