1 of 4 62WP.15286.2019 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 Tauseef 2026:BHC-AUG:15955 2 of 4 62WP.15286.2019 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 Tauseef 3 of 4 62WP.15286.2019 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 Tauseef 4 of 4 62WP.15286.2019 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.) Tauseef