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2013 Supreme(Bom) 1766
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
RAVINDRA V. GHUGE, J.
Dilipkumar Hirachand Jain
Versus
Dena Bank & Others
Writ Petition No. 1787 of 2008
Decided on: 04-09-2013
For the Petitioner:P.N. Kutti, Advocate.
For the Respondent:R1 & R2, S.V. Adwant, R3, J.R. Shah, R4 to R6, S.S. Bora, Advocates.
Headnote:Civil Procedure Code, 1908 - Section 35 - Power of Court to impose costs.
In a vexatious and frivolous litigation, Court, while dismissing suit for damages with costs, has power to order for attachment of property for execution of order imposing costs. - Going by the phraseology of Section 35 of the Code, it is clear that the Court has full powers to determine the extent of costs and computation of such costs is thus a matter of jurisdiction and the discretion of the Court subject to the parameters of Section 35, as a part and parcel of it’s power to decide the suit for damages. Needless to state that the powers flowing from Section 35 of the Code are incidental to the powers of the Court while deciding a suit for damages.
The issue arising out of the original proceedings having been crystallized to the effect that the plaintiff had dragged the defendants in a vexatious and frivolous litigation would disentitle the petitioner for any relief. It ought to be left to the wisdom of the Court dealing with the Execution Petition in the light of the material placed before it to conclude as to the manner of executing the decree. In the instant case, since the properties were identified by the judgment holders and the material on record convinced the lower Court in passing the impugned order, does not appear to be unjustified or illegal. The impugned order does not suffer from any perversity or legal infirmities.
1. Heard learned counsel for the respective parties.
2. Rule. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.
3. The petitioner, vide this petition, has impugned order dated 2.8.2007 passed by the learned II Joint Civil Judge (Senior Division), Jalgaon in Special Darkhast No.105 of 2007 below Exhibit 7. Vide the said order, learned lower Court has issued an attachment warrant under Order XXI Rule 54 of the Code of Civil Procedure (for the sake of brevity, hereinafter, referred to as "the Code").
4. The petitioner has narrated the facts, which, in brief, are as follows:-
The petitioner was original plaintiff No.2 in Special Civil Suit No.332 of 1996. The subject matter of the said suit was a claim for compensation on the ground that the defendants therein had defamed the petitioner by publishing a defamatory notice in daily news paper "Lokmat". Damages to the tune of Rs. Ten Crores were claimed before the learned Civil Judge (Senior Division), Jalgaon. Defendant No.1 therein is the Dena Bank, which had got said notice published in Daily Lokmat on 7.3.1996, in relation to non-payment of loan amount. The plea of the original plaintiff was that the publication of the said notice in the concerned news paper on 7.3.1996 had caused defamation of the plaintiff and their partnership firm inasmuch as it lowered their credit, dignity and reputation in the society and amongst friends, relatives and customers. Said suit for damages came to dismissed with costs vide judgment and order dated 17.8.2004. It is noteworthy that a decree for costs below Exhibit 129 was drawn on 29.8.2004 being a part of the judgment and order dated 17.8.2004.
5. The petitioner herein preferred a First Appeal No.462 of 2005 before the Division Bench of this Court. Needless to state that on the date of institution of the said First Appeal, the appellant therein (present petitioner) was aware of the decree. All the defendants in the original suit were impleaded as respondents in the said First Appeal.
6. The facts that emerge from the record are that while dealing with the First Appeal, learned Division Bench of this Court, dismissed the said First Appeal to the extent of respondent No.3 (the Advocate issuing the public notice), respondent No.4 (news paper in which the notice was published) and respondent Nos.5 and 6 (Printers and publishers of the said news paper, namely, "Daily Lokmat") on 31.01.2007. As such, the said First Appeal was dismissed at the threshold against said respondent Nos. 3 to 6. Said respondents are impleaded in this petition as well at the same serial numbers. Respondent No.7 in this petition has been deleted by the petitioner on 24.7.2009 itself. Thereafter the said First Appeal was dismissed on 30.03.2007, which according to the learned counsel for the petitioner has not been taken up in challenge before the Honorable Apex Court. Needless to state, said order dated 30.3.2007 has attained finality.
7. The petitioner states that the respondents herein (original defendants), had preferred Execution Petition No.105 of 2007 before learned II Joint Civil Judge (Senior Division), Jalgaon. Said decree holders identified the properties of the petitioner herein and sought the execution of decree, as against the said properties. It may be noted that vide said decree, costs worth Rs.6,25,664/-(with reference to defendant No.1), Rs. 6,25,914/- (with reference to defendant No.2) and Rs.6,25,611/- (with reference to defendant Nos.4 and 6) were awarded. It is these costs that are sought to be recovered by the said execution proceeding. It is in this context that order dated 2.8.2007 was passed by the lower Court for attaching the properties for recovery of the costs, which is impugned in present Writ Petition.
8. The petitioner, while filing this petition, had failed to produce a copy of the decree before this Court. It was pursuant to the order dated 1.2.2012 passed by this Court, the petitioner has p
