Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.Appeal.18.18
Received on : 12/01/2018
Registered on : 03/02/2018
Decided on : 26/07/2018
Duration : Y M D
00 05 23
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc.Appeal No.18 of 2018
Jyoti Vinayak Bandivadekar
(Legal heir of late Savita
Prabhakar Vagal), residing at
602, Kandivali Padmaja
CoOperative Housing Society
Ltd., plot no.6, KSC No.1,
MHADA Layout, Kandivali(W),
Mumbai67 ..Appellant
V/s.
The Estate OfficerMumbai
Office of the Dy.Salt
Commissioner, Exchange
Building, 4th floor, Sai
Shivsagar Ramgulam Marg,
Ballard Estate, Mumbai1
(Through Union of India) ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 26th July, 2018
(C.R.No.19)
Advocate Mr. B. Bahulayan for appellant.
Advocate Ms. Anamika Malhotra for respondent.
-- 1 of 6 --
2 Misc.Appeal.18.18
O R A L J U D G M E N T
Being aggrieved by the order dated 27th December, 2017
passed by the Estate Officer, the appellant preferred the present appeal
under Section 9 of the Public Premises Act, 1971.
2 The facts, necessary to decide the present appeal are as
under:
Late Savita Prabhakar Vagalthe mother of the present appellant
was the licensee of one set of room in Saza Office at Malvani, C.S.
No.69, Malad (W) in Bhayandar Circle belonging to the Salt
Department @ Rs.110/ per month rent since the year 1961, which was
increased from time to time. In the eviction proceeding before the
Estate Officer, late Savita Vagal was evicted from the enquiry premises
and an order of recovery of rent of Rs. 2,72,930/ was passed against
her. Without payment of the arrears of the rent, Savita Vagal expired.
The respondent initiated recovery proceeding against the daughter of
late Savita Vagal.
3 As per the order of the Estate Officer dated 22nd
August,2014, Tahasildar (Borivali) issued a recovery notice dated 19th
June,2015 and attempted to attach the residential premises owned by
the daughter of the present appellant i.e. flat no.602, Kandivali Padmaja
CHS Ltd., plot no.6, RSC No.1, MHADA Layout, Kandivali(W), Mumbai
67. The present appellant filed an appeal before this court vide Appeal
No.13 of 2016 on the ground that she is not personally liable for
execution of any order against her motherthe lessee as her mother did
-- 2 of 6 --
3 Misc.Appeal.18.18
not leave any estate owned by her.
4 The said appeal was allowed by the predecessor of this
court by an order dated 7th September,2016 remanding the matter to
the Estate Officer for ascertaining the liability of the legal heir of late
Savita Vagal. The Estate Officer without ascertaining the liability,
accepted the proposal of the present appellant to pay the outstanding
amount of Rs.20,000/ to Rs.25,000/ in installments and passed the
impugned order. The impugned order dated 27th December,2017 is
challenged in this appeal.
5 I have heard ld.counsels Mr. B. Bahulayan for appellant
and Ms. Anamika Malhotra for respondent.
6 The following points arise for my consideration and my
findings thereon for the reasons stated therefor are as under:
POINTS FINDINGS
1) Whether the order passed
by the Estate Officer is legal, ..In the negative
proper and correct?
2) What order? ..As per final order
R E A S O N S
7 As to point No.1 : At the outset, Ld.Estate Officer was
asked to ascertain the liability of the legal heir to execute the order of
recovery of rent of Rs.2,72,930/ against the legal heir of late Savita
Vagal. Without ascertaining the liability, it appears that the Estate
-- 3 of 6 --
4 Misc.Appeal.18.18
Officer accepted the proposal of the present appellant to pay
Rs.20,000/ to Rs.25,000/ in installments. It is the case of the
appellant that she did not receive any assets owned by her mother.
8 Furthermore, the Recovery Officer was trying to attach the
property owned by the daughter of the appellant. Neither the appellant
nor the daughter of the appellant are liable for recovery of the amount
payable by late Savita Vagal. A proposal for payment of Rs.20,000/ to
Rs.25,000/ for installments have been taken in wrong sense and the
Estate Officer passed the order to pay Rs.2,72,930/ in installments.
9 There is nothing in the impugned order as to under which
provision the ld. Estate Officer is compelling the legal heir of late Savita
Vagal to deposit towards arrears of rent. As per Section 50 of Code of
Civil Procedure, the legal representative of the deceased a judgment
debtor shall be liable only to the extent of the property of the deceased
which has come to his hands and has not been duly disposed of.
10 In the instant case, without ascertaining about the estate of
the deceased in the hands of the present appellant, the execution
through Tahasildar for recovery of the said amount was initiated against
the appellant, which appears to be an arbitrary and capricious act on
the part of the Estate Officer which needs to be quashed and set aside.
11 In conclusion, the Estate Officer shall not initiate the
recovery proceeding against the legal heirs of late Savita Vagal without
first ascertaining the property of the deceased in the hands of the legal
representative and the said property has not been duly disposed of. In
such circumstances, I answer the point accordingly and pass the
-- 4 of 6 --
5 Misc.Appeal.18.18
following order:
O R D E R
1) Misc.Appeal No.18/18 is allowed with costs.
2) Order passed by the Estate Officer dated 27th
December,2017 is hereby set aside.
3) R & P be sent back.
26/07/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 26/07/2018
Transcribed on : 27/07/2018
Signed by HHJ on :
-- 5 of 6 --
6 Misc.Appeal.18.18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 30/07/2018 (At 12.30 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 26th uly,2018
Order signed by P.O. on 27th July,2018
Order uploaded on 30th July,2018
-- 6 of 6 --