Bombay High Court
Manohar Ganpat Humne Since Decd. Thr. ... vs Matushree Construction Thr. ... on 15 July, 2025
Digitally signed
VARSHA by VARSHA
VIJAY RAJGURU
VIJAY Date:
RAJGURU 2025.07.18
13:46:22 +0530
31-wpst-23258-2025.doc
varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 23258 OF 2025
Manohar Ganpat Humne since deceased ... Petitioners
through Lrs
vs.
Matushree Construction through Proprietor ... Respondents
Milind Joshi and Ors
Mr. Mayuresh Modgi for Petitioners.
CORAM : GAURI GODSE, J.
DATED : 15th JULY 2025
ORDER:
1. Heard learned counsel for the petitioner. This petition is filed by the judgment debtor to challenge the order issuing the attachment warrant under Order XXI Rule 54 of the Civil Procedure Code, 1908 for the attachment of flat no. 101, 201 and 501, situated at Ganesh Vandan Society, Mental Hospital Road, Thane. This order is passed in the execution proceedings for the execution of the arbitral award directing the petitioners to pay an amount of Rs. 98,48,298/-. This petition also challenges the order dated 23rd January 2025 rejecting the petitioners' application for issuing witness summons for the purpose of producing the registered agreement.
2. Learned counsel for the petitioner submits that the arbitral award was passed against the dead person and the copy of the roznama produced before the executing court is a forged Page no. 1 of 4 ::: Uploaded on - 18/07/2025 ::: Downloaded on - 02/08/2025 03:14:33 ::: 31-wpst-23258-2025.doc roznama. Learned counsel for the petitioners tendered a copy of the compilation of orders. He relies upon the order dated 27 th February 2025, passed by the trial court rejecting the application for initiating action under Section 215(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS'). The allegations of the petitioners in this application is that the decree holder has placed on record a forged and fabricated roznama of the arbitral proceedings. This application is rejected by the trial court by recording that the record of the arbitral proceedings is submitted before the court; thus, the application filed by the petitioners was not tenable and it was filed only to prolong the execution of the arbitral award.
3. The operative part of the award is annexed at Exhibit-A to this petition. The title of the award refers to the original respondent as deceased and represented through the present petitioners. The objections raised on behalf of the petitioners to the application for issuing an attachment warrant are considered by the executing court in the impugned order. The impugned order records that the award is still not satisfied. Based on the valuation report the execution application of the arbitral award is entertained. Considering the record before the executing court regarding the valuation of the property, learned judge of the executing court has issued attachment warrant. The order dated Page no. 2 of 4 ::: Uploaded on - 18/07/2025 ::: Downloaded on - 02/08/2025 03:14:33 ::: 31-wpst-23258-2025.doc 23rd January 2025, also records that the application is filed only to protract the execution of the arbitral award. It is held by the learned Judge that the document is a registered document, hence, it was always open to the petitioners to place on record a copy of the registered document; Hence, it was not necessary to issue witness summons for procuring document. I do not see any illegality or perversity in the reasons recorded in both the impugned orders.
4. Learned counsel for the petitioners submits that the petitioners have already filed an application under Section 34 of the Arbitration and Conciliation Act, to challenge the Award. However, nothing is placed on record to show that there is an interim protection granted to the petitioners. The award under execution is of 2011 and the same is still not executed. So far as the objections on the award being passed against the deceased person is concerned, there is no material produced on record to indicate that the award is passed against a dead person. The title of the award annexed at Exhibit-A to the petition shows that the present petitioners are added as respondents and original respondent is referred to as deceased in the title. In these circumstances, I do not find any reason to exercise discretionary jurisdiction under Article 227 of the Constitution of India to interfere with the impugned order.
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5. The petition is devoid of any merits, hence the petition is dismissed.
6. At this stage, learned counsel for the petitioners submits that the copy of the award annexed on page 11 only refers to the application for issuing notice. Hence, the observations by this court as recorded above that the award reflects the name of the petitioners would be incorrect. Learned counsel for the petitioners has not filed a complete copy of the award to support his submissions. I do not see any reason to disbelieve the findings recorded by the executing court that the copy of the arbitration proceedings were placed before the executing court which refers to the award being passed against the present petitioners as heirs and legal representatives of the deceased original respondent.
7. At this stage, learned counsel for the petitioners submits that the copy of the award was produced before the executing court and he seeks time to rely upon the same in this petition. He submits that he will produce the same in the next week.
8. In view of this submission, the aforesaid order is kept in abeyance till the next week.
9. List this petition on 22nd July 2025, under the caption for 'directions'.
(GAURI GODSE, J.) Page no. 4 of 4 ::: Uploaded on - 18/07/2025 ::: Downloaded on - 02/08/2025 03:14:33 :::