Order 1

Order Details: Other
Pdf Text: :1: EA 04-2018 Suit1533-15
CNR NO.MHCC010008072018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
EXECUTION APPLICATION NO.04 OF 2018
IN
S.C. SUIT NO.1533 of 2015
1. Shri Vijay Shankar Bhave ]
Senior Citizen, Aged 77 years, ]
Flat No. 15, Ajanta Om Uma Maheshwar]
Cooperative Housing Society Ltd.(Regd)]
Plot No.51,/54/56, SectorI, Chheda ]
Nagar, Mumbai400 089. ]
2. Mrs. Vasudha Vijay Bhave, ]
Senior Citizen, Aged 72 years, ]
Flat No. 15, Ajanta Om Uma Maheshwar]
Cooperative Housing Society Ltd(Regd) ]
Plot No.51,/54/56, SectorI, Chheda ] .. Applicants
Nagar, Mumbai400 089. ] (Original Plaintiffs)
Versus
1. Mr. Rajesh Vijay Bhave ]
Husband of Mrs. Bharti Rajesh Bhave ]
Aged: 46 years, Occupation:Unemployed]
dependent, residing at Flat No. 15, ]
Ajanta Om Uma Maheshwar ]
Cooperative Housing Society Ltd(Regd) ]
Plot No.51,/54/56, SectorI, Chheda ]
Nagar, Mumbai400 089. ]
2. Mrs. Bharti Rajesh Bhave ]
Aged: 44 years, Occupation: Service ]
R/at Flat No. 15, Ajanta Om Uma ]
Maheshwar Cooperative Housing ]
Society Ltd(Regd) Plot No.51/54/56, ]
SectorI, Chheda Nagar, ] .. Respondents
Mumbai400 089. ] (Original Defendants)
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CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 13th March, 2018.
Adv. for the plaintiffs/D.H. present.
Adv. for the defendants present.
ORDER
The plaintiffs have taken out this Execution Application
over the judgment and order dated 06/07/2015.
2. The plaintiffs have filed the suit interalia praying for
declaration that the suit premises is self acquired property of the
plaintiff No.1 and defendant No.1 and defendant No.2 are not entitled
to claim right of residence in the suit premises either by way of 'shared
house' or otherwise. They have also prayed for consequential relief to
recover compensation for the period from January 2000 to June 2015
from defendant No.2 for her unauthorised residence in the suit
premises.
3. The court has passed order/judgment on 27/04/2017 and
while decreeing the suit, the court has held that:
“it is hereby declared that the suit premises i.e. Flat No.15,
Ajanta, Om Uma Maheshwar Cooperative Housing Society
Limited, SectorI, Chdeda Nagar, Mumbai400 089, is self
acquired property of plaintiff No.1, therefore plaintiff No.1 is
entitled to sale, alienate or dispose of the suit premises as per his
convenience and defendant No.2 is not entitled to claim the suit
premises as “shared house”.
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4. The Advocate for the plaintiffs has submitted that the court
has held in the judgment that the defendant No.2 has no right to reside
in the suit premises. Further, a declaration is granted that the suit
premises is self acquired property and plaintiff No.1 is therefore entitled
to sell, alienate or dispose of the suit premises as per his convenience
and the defendant No. 2 is not entitled to claim the suit premises. The
plaintiff has submitted that he has already sold the suit premises vide
conveyance dated 10/11/2017. Further, as per the conveyance, he is
required to deliver the possession. Therefore, he is seeking that
defendant No.2 be directed to remove herself from the suit premises, so
that he can give the possession. He has further submitted that the
court has passed order of mandatory injunction directing the defendant
No.2 alongwith her son, to remove herself from the suit premises. The
said order was confirmed in the Hon'ble High Court. Thereafter, while
passing the order, the Hon'ble Supreme Court has stayed that order
during the pendency of the suit and expedited the trial of the suit.
Therefore, the contention of the plaintiff is that the decree cannot be
effectively executed unless and until the defendant No.2 removes
herself from the suit premises, so that he can give the possession of the
suit to the purchaser as it has been held that he is entitled to sell,
alienate or dispose of the suit premises.
5. The Advocate for the defendants opposed the contention of
the plaintiffs submitting that there is no decree for possession granted
in favour of the plaintiffs or mandatory injunction. He has relied upon
the ratio laid down in case of Vedic Girls Senior Secondary School
Arya Samaj Mandir, Jhajjar Versus Rajwanti and others [2007 (5)
Mh.L.J. 384], to submit that the Court cannot go beyond the decree
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and it has to enforce the decree as per its terms. He has submitted that
execution can not be granted by this court.
6. In the present case, plaintiff is old person of 77 years old.
He has filed a suit for declaration. During the pendency of the suit he
has taken out notice of motion for mandatory injunction, so that the
defendant No.2 would vacate the suit premises during the pendency of
the suit. Same was allowed. But, in view of the orders passed by the
Hon'ble Supreme Court, she was permitted by interim order to reside
till the decision of the suit. Now, the suit is decided and there is no
protection in her favour. There cannot be any dispute about the ratio
that the court cannot go beyond the decree. The plaintiff has further
submitted that the satisfaction of the decree is possible only when the
defendant No.2 removes herself from the suit premises, so that the
plaintiff is able to handover the possession of the suit premises after
sale, as held by this court. The defendant No.2, only submitted that
she cannot be removed from the suit premises.
7. The plaintiff has already exercised his right and entered
into an agreement for sale. In pursuance to the said sale, he has to give
possession of the suit premises to the purchaser. But, in view of the fact
that the defendant No.2 is residing therein alongwith her son, the
plaintiff is unable to give the possession. Therefore, unless and until
the defendant No.2 is directed to remove herself from the suit premises,
the declaration granted in favour of the plaintiff will have no effect.
The court while allowing the suit has held that the defendants No.2 has
no right in the suit premises and plaintiff No.1 is owner of the suit
premises. It is also held that the defendant No.2 has no claim, right,
title and interest in the suit premises either by way of shared household
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or otherwise. Furthermore, there was mandatory injunction whereby
the defendant No.2 was directed to remove herself from the suit
premises and that interim protection granted to her by the Hon'ble
Supreme Court was in force only till the decision of the suit. Now, as
the suit is decided, the defendant No.2 has to remove herself from the
suit premises and that will lead to the satisfaction of the decree instead
of filing fresh suit. This is fit case where the Court is required to
exercise its inherent powers under section 151 of Code of Civil
Procedure for doing complete justice and to avoid the abuse of process
of law. In these circumstances, I proceed to pass the following order.
ORDER
The defendant No.2 is hereby directed to remove herself from the
suit premises alongwith her son, within two months from passing of
this order, for enabling the plaintiffs to handover the vacant possession
of the suit premises to the purchaser.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 13/03/2018
Dictated on: 13/03/2018
Transcribed on: 15/03/2018
Signed on: 16/03/2018
dbm/cr4
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
16/03/2018 at 5.45 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
13/03/2018
Judgment/Order signed by P.O.on 16/03/2018
Judgment/Order uploaded on 16/03/2018
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