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Nav Digvijaya Co-operative Housing Society Limited Vs. Sadhana Builders and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberExecution Appln. No. 139 of 1983 in Suit no. 1832 of 1979
Judge
Reported inAIR1984Bom114; 1984(1)BomCR241; (1983)86BOMLR59; 1983MhLJ1054
ActsCode of Civil Procedure (CPC), 1908 - Sections 148A - Order 21, Rules 43 and 54
AppellantNav Digvijaya Co-operative Housing Society Limited
RespondentSadhana Builders and ors.
Appellant AdvocateS.J. Jadhav, Adv.
Respondent AdvocateShastri, Adv.
Excerpt:
civil procedure code (v of 1908), section 148a (1); order xxi. rules 11, 43, 54, 22, 37 - application for execution for attachment under order xxi, rules 43, 54 -- provisions under section 148a whether attracted.;the filing of a caveat prevents ex parte orders being made in proceedings where the caveator has ordinarily a right to be heard. since the judgement-debtor is not a party who has a right to be heard or is ordinarily heard in application for attachment under order 21, rules 43 or 54, the provisions of section 148a are not attracted to such execution applications. - .....for execution under o. 21. r. 43 or r. 54 are not proceedings where the judgment-debtor has a right to be heard. in fact there is no provision in law for issue of a notice to the judgment-debtor in applications for execution except in specific cases enumerated in o. 21. r. 22 and o.21. r. 37. since the judgment-debtor is not a party who has a right to be heard or is ordinarily heard in applications under o. 21, r. 43 or o.21, r.54. the provisions of s. 148a are not attracted to such execution applications. the defendants are therefore not entitled to file a caveat in such an application for execution of a decree passed against them. caveat is directed to be taken off the file. office to proceed with the execution proceedings.2. mrs. shastri applies for stay of the operation of this.....
Judgment:
ORDER

1. The defendants have filed a caveat S. 148A. Civil P.C. in an application for execution made by the plaintiffs under O. 21. R. 54 and O. 21. R. 54 and O. 21. R. 43. Civil P.C. Under S. sub-sec. (1) provides as follows:-

'148A. (1) Where an application is expected to be made. Or has been made in a suit or proceeding instituted. Or about to be instituted. In a Court any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof' Under S. 148A(1) therefore. Any person who claims a right to appear before the Court on the hearing of an application can file a caveat under that section in anticipation of such application being made. The result of filing such a caveat is that once such a caveat is filed a notice of any application such a suit or proceeding must be given to the caveator. The filing of a caveat prevents separate orders being made in proceedings where the caveator has ordinaries as right to be heard. The provisions of Section 148A are therefore attracted in cases of such proceedings where the caveator is entitled to be heard in the ordinary course. Section 148A may also apply to those proceedings where the court in its discretion. Hears the party who has filed the caveat. Before passing orders. Application for execution under O. 21. R. 43 or R. 54 are not proceedings where the judgment-debtor has a right to be heard. In fact there is no provision in law for issue of a notice to the judgment-debtor in applications for execution except in specific cases enumerated in O. 21. R. 22 and O.21. R. 37. Since the judgment-debtor is not a party who has a right to be heard or is ordinarily heard in applications under O. 21, R. 43 or O.21, R.54. the provisions of S. 148A are not attracted to such execution applications. The defendants are therefore not entitled to file a caveat in such an application for execution of a decree passed against them. Caveat is directed to be taken off the file. Office to proceed with the execution proceedings.

2. Mrs. Shastri applies for stay of the operation of this order.

3. Application rejected.

4. Application rejected.


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