Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.292-2019, in Suit no.4492-2010
MHCC010014922019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.292 OF 2019
IN
EXECUTION APPLICATION NO.373 OF 2015
IN
SUIT NO.4492 of 2010
(HIGH COURT SUIT NO.2604 OF 2010)
Amol Sharad Velankar. Plaintiff/Decree
Holder.
Vs
M/s. Sai Construction Co. & Others. Defendants/Judgment
Debtors
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 19th DAY OF NOVEMBER, 2022
: Appearances:
The learned Adv. Mr. Pandey for Decree Holder.
The learned Adv. Mr. Himanshi Takke for Judgment Debtor No.2(c)
and 4.
ORAL ORDER
The decree holder/plaintiff has taken out present
Chamber Summons to carry out amendment in the execution
proceeding. It is to be noted that, the learned advocate for decree
holder not pressed prayer clause (a) to (d) and want to only argue in
respect of prayer clause (e), which read as follows:
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(e) : That the Hon'ble Court permit the plaintiff to amend the
Execution Application and incorporate the following immovable
properties in the above Execution Application:
(a). The Hon'ble Court pass an order for amendment of the
Execution Application to incorporate the following
immovable properties; Ownership flat viz at H2/03, in the
building known as Panchdeep CHSL., situated at Sector 29,
Vashi, Navi, Mumbai;
(b). Vacant and open Plot of land in the Society of the
Defendant No.5 i.e. Sarvodaya Nagar Cooperative Housing
Society Limited the said Plot of land is duly registered with
the SubRegistrar of Assurance at Mumbai Suburban
District, under serial No.11944/2010 situated at Village
Majas (Meghwadi), Opp Income Tax Colony, Next to Swami
Vivekanand School, Jogeshwari(E), Mumbai 400 060;
(Hereinafter above properties are referred to as “disputed
properties” for the purpose of deciding this Chamber Summons).
2. In short, it is contention of decree holder that after death
of defendant No.4 disputed properties come to the hands of
defendant Nos.4(a) to 4(d). It is learnt to the decree holder that
defendant Nos.4(a) to 4(d) are making hectic efforts to deal with and
dispose of disputed properties. If defendant Nos.4(a) to 4(d) succeed
in getting disposed off disputed properties then execution application
become infructuous. Hence it is necessary to amend the execution
application to join disputed properties.
3. Defendant No.4(c) strongly opposed Chamber Summons
by filing reply on affidavit. It is contended that disputed properties
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are not subject matter of suit, hence question of joining same in the
execution proceeding does not arise. Chamber Summons being
devoid of substance and merit is liable to be dismissed.
4. Heard the learned advocate for decree holder and
defendant No.4(c) at length. Perused the record.
5. It is well settled that, executing court cannot beyond the
decree. Upon perusal of judgment and decree passed in Suit
No.4492/2010, the dispute pertains to flat in CWing of building Sai
Darshan in defendant No.5 society, situate at Plot No.1 & 2, village
Majas (Meghwadi), Opposite Income Tax Colony, Next to Swami
Vivekanand School, Jogeshwari(E), Bombay. There is no whisper of
the disputed property in the plaint, judgment and decree. Therefore I
am of the opinion that disputed property cannot be made subject
matter of the execution proceeding and thus cannot be allowed to be
taken in the execution proceeding by way of amendment. Thus
Chamber Summons taken out by decree holder needs to be rejected.
Hence I pass following order.
ORDER
Chamber Summons No.292/2019 stands dismissed.
Chamber Summons stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.19.11.2022 (C.R. No.1)
Dictated on : 19.11.2022
Transcribed on : 21.11.2022
checked and Signed on : 21.11.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 22.11.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 11.10 a.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 19.11.2022
JUDGMENT/ORDER signed by P.O. on 21.11.2022
JUDGEMENT/ORDER uploaded on 22.11.2022
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