KISHAN THAKURDAS GOKALANI Vs. GOPICHAND JODHRAM DEVNANI

JUDGEMENT

(1.) This Criminal Application has been filed under Section 482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India praying that the proceedings in the Court of the learned Judicial Magistrate, First Class, Kirkee, in Criminal Case No. 2244/1979 of that Court be quashed.

(2.) The two petitioners herein claim to be citizens of India and carried on their business at Ulhasnagar. Respondent No. 1 resided at Pimpri, District Pune. During his lifetime, the father of respondent No. 1 had executed two Hundis, each for Rs. 20,000/- in favour of petitioners Nos. 1 and 2 respectively. The father of respondent No. 1 died in Or about the year 1978. The 1st petitioner thereupon filed a Summary Suit in the Court of the Civil Judge, Junior Division, at Ulhasnagar, against respondent No. 1 and others, the heirs and legal representatives of Hardasmal Devnani, claiming a decree on the basis of the Hundis. After the filing of the suit, the 1st petitioner applied to the Court for an Order for Attachment before Judgment of the property belonging to respondent No. 1. The learned Civil Judge, Junior Division, Ulhasnagar, was pleased to grant an ex parte order on 26th May, 1978 directing Attachment before Judgment. The same Court was pleased to confirm the Attachment before Judgment by its Order dated 2nd August, 1978. Thereafter respondent No. 1 preferred an Appeal, being Miscellaneous Appeal No. 62 of 1978 against the said Order of Attachment before Judgment in the Court of the Extra Assistant Judge, Thane. The learned Extra Assistant Judge was pleased to dismiss the Appeal on 18-12-1978.

(3.) The 1st petitioner thereafter took out a Summons for Judgment in Regular Civil Suit No. 25 of 1978. In that suit respondent No. 1 was granted conditional leave to defend on his depositing in Court a sum of Rs. 20,000/-. Against the said order of deposit of Rupees 20,000/- respondent No. 1 preferred a Civil. Revision Application, being Civil Revision Application No. 329 of 1979 in the High Court at Bombay, which was pending.