Bombay High Court
M/S. Ashish Industries, ... vs M/S Renuka Cotton Co., Thr. ... on 23 September, 2022
Bench: Manish Pitale
-1- 931.WP.5837.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 5837 OF 2022
M/s. Ashish Industries Vs. M/s Renuka Cotton Company
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.S. Shingane, Advocate for the Petitioner.
CORAM : MANISH PITALE, J.
DATED : 23rd SEPTEMBER, 2022.
Heard learned counsel for the petitioner.
02] The petitioner is the original defendant and
judgment debtor, who has challenged order dated 07.07.2022,
passed by the executing Court, whereby an application filed at
Exh.24, has been rejected. By the said application, the
petitioner claimed that the execution petition deserves to be
dismissed on the ground that it was not filed by a person having
locus to file such a proceeding.
03] The crux of the objection raised on behalf of the
petitioner was that the power of attorney on the basis of which
the suit was filed and the decree was passed by the trial Court,
was itself defective and therefore, the execution proceeding
initiated by the person who had filed the suit, could not be
entertained and it deserves to be dismissed.
04] It is an admitted position that the petitioner has filed
an appeal before the Appellate Court challenging the aforesaid
judgment and decree.
05] The said objection concerning the power of attorney
-2- 931.WP.5837.2022.odt
was raised before the trial Court and a perusal of the judgment
and order passed by the trial Court shows that although the
Court found some substance in the contention raised on behalf
of the petitioner as regards the defective nature of the power of
attorney, it was found that despite the same, the person, who
had filed the suit, had the locus to pursue the proceedings
before the trial Court. In other words, as on today, there is an
emphatic finding by the trial Court that the person, who had
filed the suit, did have locus to pursue the matter, as he was the
person who had dealt with the suit transaction at Aurangabad.
An admission given in the written statement on behalf of the
petitioner was also taken note of.
06] It is obvious that an objection, which was rejected by
the trial Court while passing the decree, cannot be permitted to
be raised again before the executing Court to claim that the
execution petition has been filed by a person who has no locus
to do so.
07] If at all, the petitioner is so aggrieved, he can
certainly press for stay before the Appellate Court in the
pending appeal. Instead of doing so, the petitioner filed the
aforesaid application at Exh.24, which has been correctly
rejected by the executing Court.
08] In view of the above, the writ petition is dismissed.
JUDGE
Vijay
