Final Order 1

Order Details: Chamber summons
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.199 OF 2020
IN
EXECUTION APPLICATION NO. 527 OF 2017
IN
SUIT NO.2266 OF 1994
1. Shri Tulshiram Shivaji Sonawane ]
& Ors. ]..Decree
holder.
V/s.
1. Mr. Girjappa Raoji Hotkar ]..Judgment Debtor.
And
Mrs. Shubhangani Raju Hotkar ]...Applicant
Appearance:
Advocate Mr. Akshay Pawar for the Plaintiff.
None present for Defendants.
Advocate Mr. Ravindra Singh for the applicant.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATE : 18th FEBRUARY, 2020.
ORAL ORDER
1. The applicant Mrs. Shubhangani Hotkar took out this
Chamber summons to record the obstruction caused by the Applicant
MHCC01-001350-2020
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and to pass appropriate order restraining the decree holder from
disturbing the possession of the applicant in respect of the premises
being Tennary No.21, situated at Palkar Chawl, Dharavi Cross Road,
Dharavi, Mumbai – 400 017 save and except by following due process
of law.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons and reply of plaintiff No.1 and rejoinder of the
applicant. Heard both sides.
3. Following points arise for my determination, I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether Decree holder can be
restrained as prayed for ?
In the negative.
2. What Order ? Chamber Summons
is rejected.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the applicant that she is in
lawful use occupation and possession in respect of the premises being
Tennary No.21, situated at Palkar Chawl, Dharavi Cross Road, Dharavi,
Mumbai – 400 017.
5. The plaintiff had filed the said suit in the year 2004. She
was not party to the said suit. Therefore, there is no question to
execute decree against her on the basis of Judgment and decree passed
in the said Suit. She has filed Suit No.2836 of 2018 before the City
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Civil Court and presented a Notice of Motion No.4814 of 2018 in the
said Suit. The said Suit and the said Notice of Motion is pending. The
plaintiff appeared in the said suit. The plaintiff has obtained Warrant of
possession in this Execution application by suppressing the pendency of
the suit No.2836 of 2018 of pendency 2018. Bailiff had been to the suit
premises to the suit premises on 23.1.2020 to take possession of the suit
premises but she was not available at the suit premises and her son had
gone to the college, therefore the bailiff could not execute the decree
and could not take possession of the suit premises. Therefore,
plaintiff / decree holder be restrained from disturbing her possession
over the suit premises without following due process of law.
6. In brief, it is contention of plaintiff No.1 and the
Constituted Attorney of the plaintiff Nos.2 to 4 in reply that the plaintiff
has filed the said execution application to execute the Judgment and
Decree dated 20.08.2016 passed by this Presiding Officer of this Court.
The original defendants being aggrieved by the said Judgment and
Decree preferred Civil Revision Application No.604 of 2016 before the
Hon'ble High Court, but the same was dismissed by the Order dated
19.04.2018. Thereafter, the defendants challenged the said Order
before the Hon'ble Supreme Court of India by way of S.L.P. No.23031
23032 of 2018 and the Hon'ble Supreme Court of India is pleased to
dismiss the said S.L.P. as per Order dated 31.08.2018.
7. This Court had directed as per order dated 20.01.2020 to
execute the decree by issuing warrant of possession against the
defendant.
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8. It is contention of the plaintiff that the applicant Mrs.
Shubhangani Hotkar, who is filed this Chamber Summons is wife of the
original defendant No.3. Therefore Judgment and decree passed in the
said suit is binding upon her. She has no right to obstruct the execution
of the decree. She has filed said Suit No.2836 of 2019 before the City
Civil Court but she has not obtained any injunction or interim order in
the said suit in her favour. Therefore, she has no case. Hence, the
Chamber Summons be dismissed.
9. It is contention of the applicant Shubhangani Hotkar in the
rejoinder that all the contentions raised in the reply by the plaintiff are
denied and she reiterated contentions raised in the Chamber Summons.
10. Perused copy of the plaint of the said Suit No.2836 of 2018
which is annexed with the affidavit in respect of Chamber Summons. It
is mentioned in para No.2(a) of the said plaint that defendants are
admittedly owner in respect of the property in question. It is prayed in
the said plaint to declare that the decree passed by this Court in
S.C.Suit No.2266 of 2004 dated 20.8.2016 is not binding upon the
plaintiff and defendants have no rights to disturb possession of the
plaintiff in respect of the Tennary No.21, situated at Palkar Chawl,
Dharavi Cross Road, Dharavi, Mumbai – 400 017, on the basis of said
decree except by following due process of law etc.
11. After going through the Chamber Summons and copy of
the said plaint it appears that one prayer in respect of injunction is
similar. Nothing is brought on record as to why plaintiff of the said suit
did not obtain any injunction order against the defendants of the said
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suit. Nothing is mentioned in the Chamber Summons that in what
capacity the applicant is in possession of the suit premises.
12. Perused Order passed by this Court in Exh.15 in this
Execution application on 20.11.2019.
13. Perused Order passed by this Court vide Exh.1 on
20.01.2019 by which it is directed to issue warrant of possession under
Order XXI Rule 35 of Code of Civil Procedure.
14. The said S.C. Suit No.2266 of 2004 is disposed of by
Judgment dated 20.8.2016. The Operative Order passed in the said
S.C. Suit No.2266 of 2004 runs as under:
O R D E R
1. Suit is decreed with cost.
2. Defendants are hereby directed to hand over vacant
possession of the suit premises to the plaintiff within one
month from the date of this order.
3. Decree be drawn accordingly.
15. Perused the order passed by the Hon'ble High Court in
Revision Application No.604 of 2016 with Civil Application No.224 of
2018. The Hon'ble High Court is pleased to dispose of the Civil
Application No.224 of 2018 observing that Civil Revision Application is
disposed of and nothing survives.
16. Perused the order of the Supreme Court of India passed in
Special Leave to Appeal (c) No(s).23031 – 23032/2018 dated
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31.8.2018. The Hon'ble Supreme Court of India is pleased to dismiss
the Special Leave Petition. Therefore, as on today no order of this
Court is pending before the Hon'ble High Court and also before the
Hon'ble Supreme Court.
17. Therefore, in the facts and circumstances, I am of the opinion that
there is no substance in the contention of the applicant to restrain as
prayed for. Hence, I record my finding to point No.1 in the negative
Therefore, I record my finding to point No.1 in the negative and point
No.2 is rejected as per final order. Hence following order:
ORDER
1. Chamber Summons No. 199 of 2020 is rejected.
2. At this stage Ld Adv for applicant states that this order be stayed for
a one week as applicant want to challenge this order. The Ld Adv for
plaintiff states that this order can not be stayed. I am opinion that the
C/s is rejected, therefore there is no question of granting stay. Hence,
oral prayer for granting stay of this order is rejected.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 18/02/2020 City Civil Court, Gr. MUMBAI
Dictated on : 18/02/2020.
Transcribed on : 20/02/2020.
Signed on : 20/02/2020.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.02.2020 at 03.20 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 18.02.2020
Judgment/order signed by P.O. on 20.02.2020
Judgment/order uploaded on 28.02.2020
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