Bombay High Court
Ashok Digambar Naik And 4 Ors vs Sushila Digamber Naik And Ors on 10 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
10-IA(L) 18988.2023 in EXA(L) 40764.2022 in WP 331.2010.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 18988 OF 2023
IN
EXECUTION APPLICATION (L) NO. 40764 OF 2022
IN
WRIT PETITION NO. 331 OF 2010
Ashok Digamber Naik & Ors., ...Applicants
Decree Holders,
Org. Plaintiffs
In the matter between:
Sushila Digambar Naik & Ors., ...Judgment Creditors
Versus
MHADA & Ors., ...Judgment Debtors
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Mr. Nitin G. Raut a/w Dhwani Mehta i/b P. Vas & Co., Advocate for
Applicants.
Mr. Vagish Mishra i/b Law Councellors, Advocate for Respondent
No.4.
Joshua Borges, Advocate for Respondent No.5.
----------
CORAM : R.I. CHAGLA, J.
DATE : 10TH JANUARY, 2024.
KAVITA ORDER :
SUSHIL
JADHAV
1. By this Interim Application, the Applicants are seeking
dispensation of the objection raised by the Execution Department on
10-IA(L) 18988.2023 in EXA(L) 40764.2022 in WP 331.2010.doc
the ground that the Applicants are legal heirs claiming the orders of
execution and for which appropriate order is required to be passed by
this Court.
2. The learned counsel appearing for the Applicants has
referred to Order 21 Rule 16 of the Code of Civil Procedure, 1908,
wherein it is provided that the Application for execution by
Transferee of Decree includes Transferee by operation of law and that
would include the legal heirs of the deceased Decree Holder. It is
accordingly submitted that the objection be dispensed with and the
Execution Application being finally numbered.
3. The learned Counsel appearing for the Respondent No.5
has pointed out that the Respondent No.5 is before NCLT and CIRP
moratorium has been imposed under Section 14 of the IBC.
4. Considering the innocuous relief which has been sought by
the Applicant/Original Judgment Creditor, in my view, the objection
raised by the Execution Department is required to be dispensed with
considering that Order 21 Rule 16 of the Civil Procedure Code, 1908
would cover legal heirs of the deceased to whom the Decree has been
transferred by operation of law.
10-IA(L) 18988.2023 in EXA(L) 40764.2022 in WP 331.2010.doc
5. Accordingly, the relied sought for in the Interim Application
is granted in terms of prayer Clauses 'a' and 'b' which reads thus:
"(a) that this Hon'ble Court be pleased to pass
appropriate Order permitting the Applicants to enforce the
Decree dated 4th February, 2010 read with Order dated 14 th
January, 2011 of the Supreme Court and dispense with the
objection raised by the Execution Department vide its email
dated 22nd June, 2023.;
(b) that on dispensing with the said objections, this
Hon'ble Court be pleased to direct the Execution
Department to number the above Execution Application (L)
No.40764 of 2022 to enable the Applicants to execute the
said Decree dated 4th February, 2010 read with order dated
14th January, 2011 of the Supreme Court."
6. In view of the moratorium imposed the Execution
Application upon numbering shall not be proceeded against
Respondent No.5 in view of the moratorium.
7. The learned Counsel appearing for Respondent No.5 shall
10-IA(L) 18988.2023 in EXA(L) 40764.2022 in WP 331.2010.doc
inform the Applicant/Original Judgment Creditor as and when the
moratorium is lifted under the IBC.
8. Liberty is granted to the Applicant/Original Judgment
Creditor to make any claim against Respondent No.5 before the NCLT
under the IBC.
[R.I. CHAGLA, J.]
