Bombay High Court
Hotel Surya Private Limited vs Inn Venue Hospitality Management ... on 5 October, 2023
Bench: Amit Borkar
2023:BHC-AS:29234
29-wp6262-2014.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6262 OF 2014
Hotel Surya Private Limited ... Petitioner
V/s.
Inn Venue Hospitality Management
Pvt. Ltd. ... Respondent
Mr. Shailendra S. Kanetkar for the petitioner.
Mr. Milind Hartalkar for respondent No.1.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 5, 2023
P.C.:
1. By this writ petition under Article 227 of the Constitution of
India, the petitioner is challenging order dated 24 March 2014
passed by the 4th Joint Civil Judge Senior Division, Pune below
Exhibit 10 in Special Darkhast No.58 of 2013 and order dated 9
April 2014 passed below Exhibit 11.
2. The respondent filed Summary Suit No.78 of 2012 before
Civil Judge Senior Division, Pune for recovery of amount of
Rs.18,12,593/- along with future interest at the rate of 12% per
annum. Parties arrived at compromise. Compromise decree was
passed on 12 February 2013. As per compromise, defendant was
required to pay amount of Rs.19,32,894/- as and by way of full
and final settlement before 20 March 2013. On failure to pay the
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amount before 20 March 2013, defendant was under obligation to
pay interest at the rate of 24% per annum till realization of the
entire amount.
3. On failure of the defendant to pay the amount, the plaintiff/
decree-holder filed Special Darkhast No.58 of 2013. The judgment
debtor filed an application below Exhibit 10 raising objection as
regards executability of the decree. The said application is rejected
by the impugned order. Hence, the judgment debtor has filed
present writ petition.
4. Learned advocate for the petitioner submitted that the
necessary ingredients of Order 37 Rule 3 of the Code of Civil
Procedure, 1908 ("CPC" for short) which entitles a person to file
summary suit are not fulfilled in the present case. In absence of
satisfaction regarding ingredients of Order 37 Rule 3 of the CPC,
the decree passed by the Trial Court was without jurisdiction.
Therefore, the decree cannot be executed.
5. The issue regarding maintainability of objection is no longer
res integra in view of judgment of the Apex Court in
Dhurandhar Prasad Singh v. Jai Prakash University &
Ors. reported in (2001) 6 SCC 534 and also in Government of
Orissa v. Ashok Transport Agency reported in (2005) 1 SCC
536. The distinction between void and illegal decree has been
delineated by another judgment of the Apex Court in Rafique
Bibi (D) by LRs v. Syed Waliuddin (D) by LRs. & Ors.
reported in (2004) 1 SCC 287. The Apex Court has held that the
decree suffering from illegality or irregularity of procedure cannot
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be termed executability by the Executing Court and remedy of
aggrieved person is to set aside such decree in duly constituted
proceedings before superior Court. Lack of jurisdiction in the Court
passing decree must be obtained on its face in order to enable the
Executing Court to take cognizance of such nullity based on want
of jurisdiction.
6. In the facts of the present case, whether the ingredients of
Order 37 Rule 3 of the CPC are fulfilled or not was a question of
fact which was required to be decided by the Court passing the
decree or the superior Court where challenge to such decree is
raised. The Executing Court in its limited jurisdiction under
Section 47 of the CPC which has been held to be a microscopic
jurisdiction cannot enter into arena of adjudication of facts or
illegality of the decree.
7. In my opinion, therefore, there is no infirmity in the
impugned order. The writ petition is, therefore, dismissed. No
costs.
(AMIT BORKAR, J.)
