Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/sum. no.293-2019, in Suit no.3242-2011
MHCC010014972019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
CHAMBER SUMMONS NO.293 OF 2019
IN
EXECUTION APPLICATION NO.372 OF 2015
IN
SUIT NO.3242 of 2011
(HIGH COURT SUIT NO.449 OF 2011)
Amol Sharad Velankar. Plaintiff/Decree
Holder.
IN
M/s. Sai Construction Co. & Others. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 19th DAY OF NOVEMBER, 2022
: Appearances:
The learned Adv. Mr. Pandey or Decree Holder.
The learned Adv. Mr. Himashi 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
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) and they are making hectic efforts to deal
with and dispose of disputed properties. If defendant No.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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3 Ch/sum. no.293-2019, in Suit no.3242-2011
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 go beyond
the decree. Upon perusal of judgment and decree passed in Suit
No.3242/2011, the dispute pertains to flat in CWing of building
Sarvodaya Nagar Cooperative Housing Society Limited in defendant
No.5 society situate at Plot No.1 & 2, village Majas, 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 can 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.293/2019 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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4 Ch/sum. no.293-2019, in Suit no.3242-2011
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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