Aplesh K Ajmera vs Umesh H. Gandhi
2023 Latest Caselaw 695 Bom

                                                           26-comex-8-2022.doc

jsn
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION
            COMMERCIAL EXECUTION APPLICATION NO.8 OF 2022

      Aplesh Kishore Ajmera                             ...Applicant /
                                                        Judg. Creditor

            Versus

      Umesh Himmatlal Gandhi                            ...Judg Debtor /
                                                        Ori. Respondent
                                     ----------
      Mr. Sanjay Jain and Mr. Anosh Sequeira, Mr. Naresh Chheda and Ms.
      Sakina Electricwala i/b. Dhruve Liladhar and Co. for the Applicant /
      Judg. Creditor.
      Mr Naushad Engineer, Urvi Tanna and Prachi Badami i/b. Pravin
      Mehta and Mithi & Co. for the Respondent.
                                     ----------

                                     CORAM : R.I. CHAGLA J.

                                     DATE         : 19 January 2023.

      ORDER :

1. The matter has been circulated by praecipe dated 11th

January, 2022 filed by the Advocate for the Claimant / Judgment

Creditor.

2. Mr. Sanjay Jain learned Counsel appearing for the

Claimant / Judgment Creditor has stated that the objection which

26-comex-8-2022.doc

has been raised by the Registry is with regard to why notice under

Order 21 Rule 22 of the Code of Civil Procedure to show cause

against execution has not been filed. He has submitted that the

proviso under Order 21 Rule 22 makes it clear that notice is not

necessary where more than two years have elapsed between the date

of the decree and the application for execution, provided that an

application is made within two years from the date of the last Order

against the party against whom the execution is applied for. He has

submitted that there was a previous Execution Application taken out

in which the order dated 18th January, 2018 was passed and

thereafter in second Execution Application an order dated 30th April,

2019 came to be passed. The present Execution Application is filed

on 20th September, 2019 which is within the two years from the date

of last order passed against the party against whom the execution is

applied. Accordingly, no notice is required to be issued under Order

21 Rule 22 of the Code of Civil Procedure, 1908 to show cause

against execution.

3. Having considered the submission of Mr. Sanjay Jain as

well as noting that under the proviso to Order 21 Rule 22, notice is

not required under Order 21 Rule 22 of the Code of Civil Procedure

26-comex-8-2022.doc

as in this case where Execution Application is filed within two years

from the date of last order passed against whom the execution is

sought. Accordingly, the objection taken by the Registry is dispensed

with.

4. Notice under Order 21 Rule 22 of the CPC is not required

in the present case. Hence praecipe is disposed of accordingly.

[R.I. CHAGLA J.]