Bombay High Court
Sanjay Bhimrao Patil And Others vs M/S Shriram City Union Finance Ltd ... on 7 December, 2021
Bench: Mangesh S. Patil
924 WP 12284 21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
924 WRIT PETITION NO.12284 OF 2021
SANJAY BHIMRAO PATIL AND OTHERS
VERSUS
M/S SHRIRAM CITY UNION FINANCE LTD GPA HOLDER NAMELY
INDRAJIT D MAHAJAN
...
Advocate for Petitioners : Mr. Bora Satyajit S.
CORAM : MANGESH S. PATIL, J.
DATE : 07.12.2021.
PER COURT :
The petitioners are the judgment debtors who are aggrieved by the
order of attachment passed by executing Court under Order XXI Rule 54 of
the Code of Civil Procedure.
2. I have heard the learned advocate for the petitioners. He submits that
since the execution was filed beyond two years of passing of the decree, a
notice was directed to be issued to them. They had raised the objection and
even without considering and deciding the objection, the executing Court
has proceeded to pass the order under challenge. He would further submit
that the petitioners are ever ready and willing to pay the amount under the
decree but were merely seeking some concession. However, in view of such
order of attachment all the doors are closed and they cannot now explore
possibility of any such settlement.
3. I have carefully considered the submissions and the papers including
the order under challenge. There cannot be any dispute about the passing
of the award which is put to the execution. It appears that the property of
the petitioner No. 5 was mortgaged to the respondent/decree holder by a
registered deed of mortgage. Needless to state that it is for a decree holder
to explore and choose the remedies as are suitable to him for execution of
the award. It is his choice in what manner he can take assistance of the
924 WP 12284 21.odt
executing Court for recovery of money. It would not lie in the mouth of a
judgment debtor to insist for the manner in which a decree can be satisfied.
If at all they are seeking some adjustment the request could have been made
before the executing Court, in the absence of which, the petitioners cannot
be heard now to say that they are ready to pay but would require some
concession.
4. So far as the other argument is concerned, though the executing Court
had directed a notice under Order XXI Rule 22 of the Code of Civil
Procedure to be issued, pursuant to such a notice the petitioners had put in
appearance and had filed an objection. It is after hearing them that the
order under challenge has been passed and therefore it cannot be said that
the executing Court has erred in passing the order without considering the
objection of the petitioners. The whole purpose of directing a notice under
Order XXI Rule 22 of the Code of Civil Procedure is to put the judgment
debtor to notice that though belatedly the decree/order has been put to
execution. The purpose was already over since the petitioners had put in
appearance in the execution proceeding. All these facts and circumstances
have been considered by the executing court while directing an attachment
of the property standing in the name of the petitioner No. 5 which was
mortgaged to the respondent-financial institute.
5. Besides, admittedly, no application under Order XXI Rule 58 of the
Code of Civil Procedure seems to have been filed by the petitioners. That
could be an efficacious remedy available to them to lift the attachment. In
absence of which I find no perversity or arbitrariness in passing the order of
attachment.
6. The Writ Petition is dismissed in limine.
(MANGESH S. PATIL, J.)
mkd/-
