BABASAHEB LAXMAN MOTEversusSOPAN KACHRU MOGAL AND OTHERS

2026:BHC-AUG:15955
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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 62 WRIT PETITION NO. 15286 OF 2019

                                     BABASAHEB LAXMAN MOTE
                                               VERSUS
                               SOPAN KACHRU MOGAL AND OTHERS
                                                  ...
                Mr. Shankar G. Shete, Advocate for the Petitioner.
                Mr. Afzal Husain M. Vakil, Advocate for Respondent No.4.
                                                  ...

                                         CORAM :          SIDDHESHWAR S. THOMBRE, J.
                                         DATE     :       27th MARCH 2026
                P.C.:-

                1.        Heard learned Advocates for the respective parties.

                2.        The Petitioner is aggrieved by the order dated 28.02.2019

                passed below Exhibit-38 by the learned Civil Judge, Junior Division,

                Kannad in Regular Darkhast No.13 of 2013, whereby the learned

                Executing Court recalled the arrest warrant issued against the

                judgment debtors for their detention in civil prison.

                3.        Mr. Shankar G. Shete, learned Advocate for the Petitioner,

                submits that the Petitioner had filed Regular Civil Suit No.145 of 2009,

                which came to be decreed on 02.07.2013. Pursuant thereto, the

                Petitioner initiated execution proceedings by filing Regular Darkhast

                No.13 of 2013.

                          He submits that an application was filed under Order XXI

                Rule 32(5) of the Code of Civil Procedure, 1908 (for short, “CPC”) for

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          attachment of immovable property, and accordingly, an attachment

          order was issued under Order XXI Rule 54 of the CPC.

          4.         It is further submitted that the Respondents had preferred a

          Regular Civil Appeal along with an application for condonation of

          delay bearing MARJI No.333 of 2014, which came to be dismissed for

          default.   Despite   attachment    of      the   immovable   property,     the

          Respondents continued to obstruct the cartway. Therefore, the

          Petitioner was constrained to file an application under Order XXI Rules

          37 and 38 of the CPC seeking arrest and detention of the judgment

          debtors in civil prison.

                     Show-cause notices were issued and the Petitioner deposited

          an amount of Rs.12,000/- towards subsistence allowance. Thereafter,

          the learned Executing Court issued arrest warrants. Subsequently, the

          Respondents appeared in the execution proceedings, deposited the

          decretal costs, and filed an application below Exhibit-38 seeking recall

          of the arrest warrants, which came to be allowed by the Executing

          Court.

          5.         Learned Advocate for the Petitioner submits that the

          Executing Court had rightly issued the arrest warrants considering the

          continued obstruction despite attachment. However, without assigning

          cogent reasons, the Executing Court allowed the application below

          Exhibit-38 and recalled the warrants. It is, therefore, contended that

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          the impugned order suffers from error.

          6.         Per contra, Mr. Vakil, learned Advocate for Respondent No.4

          supports the impugned order and submits that the order issuing arrest

          warrants was passed ex-parte. The judgment debtors were not heard

          before passing the order of detention in civil prison. Therefore, the

          Executing Court has rightly recalled the said order.

          7.         Having heard the learned Advocates for the respective parties

          and upon perusal of the record, it is evident that the decree is not in

          dispute and execution proceedings were rightly initiated. It is also not

          in dispute that attachment of the property was effected. However, the

          order issuing arrest warrants and directing detention in civil prison was

          passed ex-parte. The record does not clearly demonstrate that the

          judgment debtors were duly served prior to issuance of such coercive

          process.

                     An order of arrest and detention in civil prison directly

          affects the personal liberty of an individual and, therefore, strict

          compliance with procedural safeguards is necessary. In the absence of

          proper service and opportunity of hearing, such an order cannot be

          sustained. This issue has already seen considered by this Court in the

          matter of Purbha Tulsa @ Tulsiram Dhutde & Ors. Vs. Mohd. Jafar

          Shaikh Ismail in Writ Petition No.5563 of 2023 dated 18.04.2023 . In

          that view of the matter, the Executing Court has rightly recalled the

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          arrest warrants. I do not find any reason to interfere with the

          impugned order.

          8.        Hence, the present petition stands dismissed. No order as to

          costs.

          9.        However, the Petitioner is at liberty to file a fresh application

          before the Executing Court seeking police aid as well as attachment of

          the property for execution of the order of perpetual injunction. If such

          an application is filed, the Executing Court shall consider and decide

          the same in accordance with law.

                                             (SIDDHESHWAR S. THOMBRE, J.)




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