Final Order 1

Order Details: Chamber summons
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 87 OF 2019
IN
EXECUSION APPLICATION NO.299 OF 2018
IN
SUMMARY SUIT NO. 777 OF 2016
Freddy Keki Bhadha ].. Plaintiff.
V/s.
1. Himanshu V. Chaturvedi, ]
2. Urvashi Himanshu Chatuvedi. ]..Defendants.
And
Mr. Vedprakash R. Choube. ]..Applicant.
Advocate Ms. Neha Pandey for the applicant.
AdvocateMr. Harish Pawar for the plaintiff/Decree Holder
None for the Defendant JD.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 6th SEPTEMBER, 2021
ORDER
The The Chamber Summons is taken out by the third party
Mr. Vedprakash R. Choube with the prayer of lifting the attachment
levied upon the Flat No.233, situated at Building No.2, Oshiwaa,
MHADA, Andheri (West), Mumbai400 058.
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2. It is the case of the applicant that the respondent instituted
a Summary Suit No.777/2016 against his son and daughterinlaw for
recovery of amount. The suit ultimately came to be decree exparte.
During the course of execution, the aforesaid property is attached under
warrant of this Court.
3. It is the case of the applicant that the aforesaid premises is
exclusively owned by him as he has purchased the same from his own
funds. He purchased the same in the name of his wife out of love and
affection. The original purchase agreement in his custody. His wife is
dead. Therefore, the entire flat now belongs to him.
4. It is the case of the applicant that share certificates are
transferred in his name. The original defendant No.1 and the present
applicant are not having good relations though they are residing in the
aforesaid property. The applicant has stated that the parties to the
Summary Suit No.777 of 2016 have colluded with each other for
disposal of the said flat.
5. The plaintiff in Summary Suit No.777/2016 appeared and
filed his affidavit in reply stating therein that it is filed to stop execution
of the decree passed on 20.01.2018. It is further stated that no
documents filed on record to show ownership and title over the suit flat
of the present applicant. The documents on record filed by the
applicant are standing in the name of his wife. Therefore, the applicant
is not entitled for any relief as prayed for.
6. It is further stated that even if it is assumed that the flat
stands in the name of the parents of defendant No.1 then also the
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defendant No.1 is entitled to his appropriate share after the demise of
his mother. For all these reasons, the plaintiff has prayed for dismissal
of Chamber Summons.
7. In support of the claim of the applicant, he has produced
copy of receipt of the maintenance amount issued by the society which
stands in the name of the wife of the applicant. The applicant has
further produced electricity bill for the aforesaid property which also
stands in the name of his wife. The maintenance bill is for the month of
December 2018 whereas the electricity bill is for the month of
November 2018. The applicant has filed bill of Mahanagar Gas Limited
on record for the month of September 2018 which also stands in the
name of his wife. It is the case of the applicant that the original
agreement to sell is in his possession, but for some unknown reason, he
has withheld the same. It is the case of the applicant that the property
was purchased out of the funds exclusively raised by him and the
defendant no.1 or even his wife were nowhere concerned with the
same. He has purchased the property in the name of his wife out of
love and affection only.
8. Admittedly, his wife died in the year 2012, but the
applicant did not take any steps till the end of 2018 to get aforesaid
property transferred in his name. At least, there is no documents filed
by him on record to that effect. On the other hand, the documents
produced by him show that in record of the Housing Society, power
supply and gas supply the name of his wife is recorded as owner.
9. The applicant has not produced anything on record to show
that he raised entire amount required for purchasing the said flat. He
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could have produced copy of Bank passbook or bank statement or
cheque which were used for paying consideration amount of the said
property.
10. I have gone through the report of service effected on the
defendants in Summary Suit No.777/2016 and it shows that the
summons was served upon these two defendants in the aforesaid suit
property itself. It is the case of the applicant that he is residing with the
defendants in the aforesaid property. In the circumstances, it is difficult
to hold that he was unaware of any such suit in which exparte decree
was passed against the defendants.
11. In view of all above discussion, I have come to the
conclusion that the applicant has failed to produce on record any
documents to show that he is the owner of the suit property.
12. After demise of his wife, the applicant and his son i.e.
original defendant No.1 may get share in the suit property at the most.
However, in that case also the share which is belonging to the
defendant No.1 can be attached under the execution of the decree.
13. The allegation of the applicant that the parties in the Suit
No.777/2016 have collusion with each other have got exparte decree
passed in favour of the plaintiff by this Court also needs to be dismissed,
as there is nothing on record to that effect. In view of above, it appears
that this is an attempt on the part of the applicant to prolong the
execution which needs to be turned down. I find no substance in the
application which deserves to be rejected. Hence, I proceed to pass
following order:
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O R D E R
1. The Chamber Summons No.87 of 2019 is rejected with
costs and stands disposed of accordingly.
2. the record and proceedings be sent to the Registrar for
further execution.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 06.09.2021 Gr.Mumbai.
Dictated on: 06.09.2021
Typed on : 06.09.2021
Signed on : 06.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08.09.2021 AT 11.05 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
06/09/2021
Judgment/Order signed by P.O. on 06/09/2021
Judgment/Order uploaded on 08/09/2021
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