Bombay High Court
ORIX LEASING AND FINANCIAL SERVICES INDIA LTD THR. AUTHORISED OFFICER ABDULLATIF PATELversusATHARALI MUZAFARALI KHAN AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The High Court set aside the orders rejecting the Notice of Motion and Chamber Summons and remanded them for fresh decision, permitting the petitioner to produce the original mortgage deed and rely on the SARFAESI Act order.
Summary
Orix Leasing and Financial Services India Ltd., a non‑banking financial company, filed two writ petitions challenging the City Civil Court's orders that rejected its Notice of Motion and Chamber Summons seeking to intervene in the execution of an ex‑parte money decree. Orix claimed that the decree‑holder’s attachment of certain properties would defeat its prior mortgage over the same assets, but the court had dismissed its motion on the basis of a photocopy of the mortgage deed. The High Court observed that Orix could produce the original mortgage deed and relied on a later order dated 21 February 2024 of the Chief Metropolitan Magistrate under Section 14 of the SARFAESI Act appointing a Court Commissioner for possession of the secured assets. Accordingly, the High Court set aside the lower court’s orders and remanded the Notice of Motion and Chamber Summons for fresh consideration, allowing Orix to present the original deed and related documents. The Court directed that no auction of the properties should proceed until the executing court decides the matters on their merits. Both writ petitions were partly allowed and disposed of.
Issues considered
- Whether a mortgagee (third party) can intervene in execution proceedings when only a photocopy of the mortgage deed has been produced.
- Whether the executing court must reconsider the petitioner's motion in light of the original mortgage deed and the subsequent SARFAESI Act order.
- Whether the lower court's rejection was based on lack of locus or insufficient evidence.
Legislation cited
Subjects
- mortgage
- execution of decree
- third‑party intervention
- SARFAESI Act
- notice of motion
- chamber summons
- property attachment
- ex‑parte decree
Judgment
2026:BHC-AS:13790
Megha 8_wp_6244_2022 wi6093_22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6093 OF 2022
Orix Leasing and Financial Services ...Petitioner
India Ltd.
V/s.
Atharali Muzafarali Khan and Anr. ...Respondent
WITH
WRIT PETITION NO.6244 OF 2022
Orix Leasing and Financial Services
India Ltd. ...Petitioner
V/s.
Atharali Muzafarali Khan and Anr. ...Respondents
________________
Mr. Padmanabh D. Pise with Ms. Sejal A. Hariyan i/b. M/s. Padmanabh
and Associates for the Petitioner.
Mr. V.R. Tripathi i/b. Mr. Rajesh Dixit for Respondent No.1.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 18 MARCH 2026.
P.C.:
1) In Writ Petition No.6093 of 2022 challenge is to the order dated
15 December 2021 passed by the City Civil Court at Greater Bombay,
rejecting the Notice of Motion No.103250 of 2019. The Motion was @led
by the Petitioner, who is a non-banking @nancial company for the
purpose of objecting to the attachment and sale of the properties in
execution of the money decree passed in favour of the Plaintiff.
Page No.1 of 4
18 March 2026
Megha 8_wp_6244_2022 wi6093_22
2) According to the Petitioner, the Suit was @led based on alleged
amount of hand loan and the same has been decreed ex-parte. It is
contended that the decree is secured for the purpose of frustrating the
claim of the mortgage of the Petitioner in respect of the mortgaged
property. It is with this grievance, Petitioner sought to intervene in
execution proceedings and objected to attachment of property, which is
allegedly mortgaged with the Petitioner.
3) Perusal of order dated 15 December 2021 would indicate that the
Petitioner has produced only a photocopy of mortgage deed. The learned
counsel appearing for the Petitioner submits that the Petitioner can
produce original mortgage deed before the Executing Court. He also
relies on order dated 21 February 2024 passed by the Chief Metropolitan
Magistrate, Esplanade, Mumbai allowing Application under Section 14 of
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act) and
appointing the Court Commissioner for taking over possession of the
secured assets. In my view, claim of the Petitioner needs to be examined
afresh by the Executing Court by taking into consideration the original
deed of mortgage as well as the subsequent event of passing of order
dated 21 February 2024 by the Chief Metropolitan Magistrate. In that
view of the matter, Notice of Motion No.103250 of 2019 deserves to be
remanded for decision afresh. In the event, the Executing Court is
satis@ed that the properties, which are sought to be attached by the
Decree Holder are mortgaged assets of the Petitioner, the court will have
Page No.2 of 4
18 March 2026
Megha 8_wp_6244_2022 wi6093_22
to ultimately decide whether the suit properties can be attached or sold
in execution of the decree.
4) So far as Writ Petition No.6244 of 2022 is concerned, the same
challenges order dated 15 December 2021 dismissing Chamber Summons
No.1563 of 2019 @led by the Petitioner seeking intervention in the
execution proceedings. Since Notice of Motion is rejected, the Executing
Court has also proceeded to reject the chamber summons for
intervention.
5) The learned counsel appearing for Respondent No.1 relies on
judgment of this Court in Amol Vishwanath Bade V/s. Dattatraya Dinkar
Ghule and Ors.1 in support of his contention that Petitioner is a third
party and cannot have any locus to intervene in the execution
proceedings. However, the Notice of Motion is not rejected by the
Executing Court on the ground of absence of locus of the Petitioner.
Motion is rejected essentially by expressing the doubts about photocopy
of mortgage deed relied upon by the Petitioner. Now that the Petitioner
is willing to produce original Mortgage Deed and also rely upon
subsequent developments to establish a claim of prior mortgage in
respect of the property sought to be attached, in my view the
opportunity needs to be given to the Petitioner and Notice of Motion
needs to be heard and decided afresh.
6) Consequently, order dated 15 December 2021 passed in Notice of
Motion No. 103250 of 2019 as well as order dated 15 December 2021
1 2014(3) ALL MR 644
Page No.3 of 4
18 March 2026
Megha 8_wp_6244_2022 wi6093_22
passed in Chamber Summons No.1563 of 2019 are set aside. Notice of
Motion No.103250 of 2019 and Chamber Summons No.1563 of 2019 are
remanded for fresh decision by the Executing Court. The Petitioner
would be at liberty to produce original deed of mortgage as well as rely
upon the necessary documents for the purpose of proving its charge on
the property slated for attachment by the Executing Court. The Notice of
Motion and Chamber Summons shall be decided by the Trial Court on
their own merits without being inEuenced by the observations made by
this Court in the order.
7) All rights and contentions of the parties on merits are expressly
kept open.
8) With the above directions, both the Writ Petitions are partly
allowed and disposed of.
9) Till the Notice of Motion and Chamber Summons are decided
afresh, no further steps shall be taken by the Executing Court for the
auction of the properties concerned.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
Page No.4 of 4
Designation: PA To Honourable Judge 18 March 2026
Date: 23/03/2026 19:59:04
Checking your session…