Bombay High Court
Shakuntala Shamsing Mali And ... vs Housing Development Finance ... on 27 November, 2013
Bench: R.V. Ghuge
( 1 ) Writ Petition No.8224 of 2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8224 OF 2011
Shakuntala Shamsing Mali and another PETITIONERS
VERSUS
Housing Development Finance Corporation Ltd.,
and others RESPONDENTS
Mr.U.S.Patil, Advocate for petitioners.
Mr.S.V.Adwant, Advocate for respondent No.1.
Respondent Nos. 2,3 and 4 are served.
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 27/11/2013
PER COURT :
1. Heard learned advocates for the respective parties. None
appeared for respondent Nos. 2, 3 and 4 though served.
2. Contention of the petitioner is that the petitioners had
borrowed loan of an amount of Rs.23,000/- from respondent No.
1/Bank. An amount of Rs.11,447/- was repaid to the said Bank.
Balance amount of Rs.11,526/- stood in the loan account of the
petitioners.
3. Respondent No.4, on 10/06/1988 purchased suit property of
petitioner no.1 for an amount of Rs.1,93,000/- out of which an
( 2 ) Writ Petition No.8224 of 2011
amount of Rs.1,80,000/- was to be paid and Rs.13,000/- were
earmarked to be paid to respondent No.1 bank as against existing
loan amount of the petitioners.
4. Respondent/Bank initiated Spl.C.S.No.301/1996 before the
learned Civil Judge, S.D. Nashik for recovery of the amount of Rs.
33,540/-. The petitioners, though served, did not participate in the
said proceedings. Eventually, the learned Court decreed the suit of
the respondent No.1/Bank on 19/03/1997 in the absence of the
petitioners.
5. Respondent No.1 Bank, thereafter filed Spl.Dkt.No.11/1998 in
the Court of Civil Judge, S.D.Jalgaon seeking execution of the decree
dated 19/03/1997.
6. In the meanwhile, the petitioners filed a Misc.Civil Application
No.102/1998 seeking 'setting aside' of the ex-parte decree.
According to the petitioners, the said application has been rejected
and the ex-parte decree dated 19/03/1997 has been left untouched.
He prays to be excused for having not been able to produce a copy of
the order of rejection of his Misc.Application No.102/1998. However,
he fairly states that as a consequence thereof and in view of the
petitioners having not initiated any further proceedings with
reference to the ex-parte decree, the said decree has attained finality.
7. The petitioners submit that an application u/s. 47 of the Civil
( 3 ) Writ Petition No.8224 of 2011
Procedure Code, 1908 has been filed before the Executing Court. It is
further stated that since his application Exh.19 is pending on the file
of the Executing Court, the impugned order of attachment could not
have been and ought not to have been passed. He placed his
reliance on the case of Sarojini Nunes Vs.Smt.Lennet Godinho and
others, 2008(5) All MR 176. According to him, the view taken by
the learned Single Judge of this Court in the said matter squarely
applies to this case. He further states that an application for
objections filed in the execution proceedings needs to be heard and
decided before the Executing Court proceeds with the matter and
therefore as per his submissions until his application Exh.19 is not
decided, the execution proceedings could not have progressed at all.
According to him, the learned Lower Court ought to have first decided
his application Exh.19 without which the Court should not have
proceeded further. Therefore, the impugned order is rendered
unsustainable and deserves to be quashed and set aside.
8. He further states that he has been granted ad interim
protection by this Court vide its order dated 20/10/2011 subject to
the petitioners' depositing Rs.10,000/-. According to him, the said
amount is deposited in this Court.
9. Adv.Mr.S.V.Adwant for the contesting respondent No.1 draws
my attention to the fact that the execution proceeding Spl.Dkt.No.
11/1998 was initiated way back on 21/02/1998. According to him,
the petitioner has merely resorted to a formality by submitting an
( 4 ) Writ Petition No.8224 of 2011
application Exh.19 raising objections and has thereafter not resorted
to any diligent steps to have the said application decided. He further
states that if the submissions of the petitioners are accepted, it would
mean that any litigant would file objections u/s. 47 of the C.P.C. and
thereafter leave the application pending so as to stall the progress of
the execution proceedings.
10. According to Adv.Mr.Adwant, if this modus operandi is
approved by any pronouncement of the Court, it would amount to
litigant's taking dis-advantage of the same as is found in this case.
11. He is in agreement with the learned Advocate for the petitioners
so far as the transfer of Spl.Dkt.No.11/1998 to the Civil Judge,
J.D.Chalisgaon, Dist.Jalgaon and it being re-numbered as R.D.No.
24/2001.
12. He further submits that despite the said Darkhast having been
transferred and it being received on 30/03/2001 in the Court of Civil
Judge, J.D. Chalisgaon, as is evident from page no.15 of the paper
book, the petitioners have thereafter not initiated any step to have
Exh.19 decided. According to him, the conduct of the petitioners
clearly indicates that they are negligent, in as much as, have
deliberately kept Exh.19 pending to stall the execution proceedings.
In the original proceedings, also the petitioners were negligent and
even in these proceedings, Exh.19 is pending for a period of almost
11 years. The impugned order of attachment is dated 07/10/2011.
( 5 ) Writ Petition No.8224 of 2011
He clarifies that the order of attachment was also passed earlier on
04/07/1998 as can be seen from page no.15 of the paper book.
13. In the light of the above, though I am in respectful agreement
with a view taken by the learned Single Judge of this Court in the
Sarojini's case (supra), the same can be of no avail to the petitioners
in the light of their conduct and negligence on their part.
14.
In this view of the matter, writ petition stands dismissed with
no order as to costs.
15. An amount of Rs.10,000/- has been deposited by the
petitioners in this Court. At this juncture, Adv.Mr.Adwant submits
that if the said amount is paid to respondent No.1, that would be
adjusted against the outstanding dues, which is the subject matter of
the execution proceedings. Learned Advocate for the petitioners
fairly concedes to the same and agrees that this amount be adjusted
towards the outstanding loan amount.
16. As such, the said amount of Rs.10,000/- be paid to respondent
No.1 forthwith. This aspect be brought to the notice of the Executing
Court by respondent No.1 within 15 days from the date of receiving
the amount of Rs.10,000/-.
( RAVINDRA V.GHUGE, J.)
khs/Nov.2013/wp8224-11
