While noting that there was already an order passed directing that the evidence led by the applicant in the application under Order 21, Rule 32 of the Code Of Civil Procedure could not be looked into while deciding the application under Order 21, Rule 31, the Himachal Pradesh High Court has set aside an order of the Executing Court passed based on the evidence led in the Order 21, Rule 32 application. The High Court held that there was a complete non-application of the judicial mind by the concerned Judge.

The High Court was considering a petition challenging the order passed by the Court of Civil Judge in the application filed by the respondent under Order 21, Rule 31 of the Civil Procedure Code.

The Single Bench of Justice Ajay Mohan Goel asserted, “...in terms of the impugned order, the learned Executing Court again relied upon the evidence which was led by the applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code. This demonstrates that there was a complete non application of judicial mind by the learned Judge concerned, who did not care to go through the order passed by this Court in the earlier CMPMO. This is deprecated because when already in the same case there was an order passed by the High Court directing and holding that the evidence led by the applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code could not be looked into while deciding the application under Order 21, Rule 31 of the Civil Procedure Code, the learned Executing Court by no stretch of imagination could have decided the application by relying upon the evidence led by the applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code.”

Advocate Deepak Gupta represented the Petitioner, while Advocate Kul Bhushan Khajuria represented the Respondent.

Arguments

It was the case of the petitioners that while deciding the application in terms of the impugned order, Court below took into consideration the evidence which was led by the respondent in another miscellaneous application filed under Order 21, Rule 32 of the Civil Procedure Code and the same was in violation of the judgment passed by the High Court in Mahindra and Mahindra Financial Services Ltd. and others v. Basanti Devi (2017). According to the Petitioners, it was held therein that the evidence led by the respondent/ applicant in the application filed under Order 21, Rule 32 of the Civil Procedure could not be taken into consideration while deciding the application filed under Order 21, Rule 31 of the Civil Procedure Code.

Reasoning

On a perusal of the records, facts and circumstances of the case, the Bench noted that the respondent, who is the Decree Holder, had filed an application under Order 21, Rule 32, in which said party had led the evidence. Thereafter, another application was filed by the Decree Holder under Order 21, Rule 31 of the Civil Procedure Code. While deciding the said application earlier, the Executing Court relied upon the application which was led in the application filed under Order 21, Rule 32 of the Civil Procedure Code. After the High Court disposed of the petition, the Executing Court again relied upon the evidence which was led by the applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code.

The Bench was of the view that when already in the same case there was an order passed by the High Court directing and holding that the evidence led by the applicant in the application filed under Order 21, Rule 32 of the Civil Procedure Code could not be looked into while deciding the application under Order 21, Rule 31, the Executing Court could not have decided the application by relying upon the evidence led by the applicant in the application filed under Order 21, Rule 32.

Thus, allowing the petition, the Bench set aside the impugned order and directed the Executing Court to decide the application filed under Order 21, Rule 31 of the Civil Procedure Code afresh on its own merit, taking into consideration by permitting the Judgment Debtor to file objections, in accordance with law.

Cause Title: Mahindra and Mahindra Finance Services Limited v. Smt. Basanti Devi (Neutral Citation: 2025:HHC:34731)

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Himachal Pradesh High CourtJustice Ajay Mohan Goel

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.