Writ Petition No. 254 of 2016. Case: Ulhas Pandharinath Chodankar and Ors. Vs The Senior Civil Judge, 'C' Court. Bombay High Court

Case Number:Writ Petition No. 254 of 2016
Party Name:Ulhas Pandharinath Chodankar and Ors. Vs The Senior Civil Judge, 'C' Court
Counsel:For Appellant: Vilas P. Thali, Advocate
Judges:S. B. Shukre, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XXI Rules 21, 22; Section 151; Constitution of India - Article 227
Judgement Date:March 10, 2016
Court:Bombay High Court
 
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Judgment:

S. B. Shukre, J.

  1. Heard learned Counsel for the petitioner.

  2. In view of the law laid down by the Hon'ble Apex Court in the case of Savitri Devi v. District Judge, Gorakhpur and Others, (1999) 2 SCC 577, this being a Writ Petition invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India against the order passed by the learned Senior Civil Judge dated 30.01.2016, it is directed that the respondent-Judicial Officer be deleted forthwith. Cause title be amended accordingly forthwith.

  3. After deletion of the sole respondent from the array of party-respondent in the cause title of this petition, the question relating to legality and correctness of the impugned order still remains and even in the absence of a specific person added as respondent-party, having regard to the nature of the supervisory powers of the Court, this question can be dealt with in such a situation. Accordingly, the question of legality and correctness is being considered in the light of the argument canvassed before me by learned Counsel for the petitioners and the applicable legal provisions.

  4. Heard. Rule. Heard finally.

  5. It is contended by learned Counsel for the petitioners that the execution of decree which has been sought for by the petitioners was passed within two years of time from the date of execution application and therefore, as held in the case of Inocencio Fernandes v. Francisco Mario De Jesus Lopes, AIR 1978 Goa, Daman and Diu 13, the executing Court ought to have directed, execution of the decree immediately by issuing warrant of possession without issuing any notice to the judgment debtor. He submits that law so laid down in the said case has not been applied by the learned Senior Civil Judge and without there being any specific provision of law conferring discretionary power upon the executing Court to issue notice, even in a case where a decree is being executed is less than two years old, the learned Senior Civil Judge has erroneously passed the impugned order wherein he has issued notice to the judgment debtor.

  6. In the instant case, the decree that is being sought to be executed through the executing Court is passed on 16.01.2014. The execution application has been filed in December, 2015, that is, before expiry of period of two years from the date of decree. Under Order 21 Rule 22 C.P.C., when an application for execution of decree is made after expiry of two years from the date of decree, then only...

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