Final Order 1

Order Details: Other
Pdf Text: 1 TA36.18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Transfer Application No.36 of 2018
In
S.C. Suit No.1863 of 2017
Mrs.Shaila Suresh Boble ..Applicant/Plaintiff
V/s.
Jethalal Gopalji Thakkar
@ Karia & Ors. ..Respondents/Defendants
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 18th April,2018
(C.R.No.19)
Advocate Mr.S.N. Kadam for applicant.
Advocate Mr.Satish Kumbhar for respondent nos.1 to 7.
Advocate Ms.Vandana Thakkar for respondent nos.8 to 11.
O R A L O R D E R
The applicant/plaintiff in S.C. Suit No.1863/17 seeks
transfer of her suit pending before C.R. No.4 to C.R. No.2 where
Execution Petition for execution of the decree dated 24th October,2005
passed in a suit no.4859/2004 in favour of the defendants no.8 to 11
the non applicants herein is pending. The applicant submits that the
above said decree was obtained exparte against her husband by playing
fraud on the court and the execution of the said decree is pending
before C.R. No.2.
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2 Applicant, the wife of judgment debtor in the said decree
for possession claims to be the monthly tenant of the suit premises of
landlords defendant nos.1 to 7. She further states that the defendant
nos.8 to 11 attempted to execute the decree on 9th December,2016 and
the same was obstructed by her and accordingly she has also taken out
obstructionist proceedings no.79 of 2017 which is pending before C.R.
No.2. In this application she seeks transfer of her aforesaid suit to
court room no. 2 where the execution petition is pending.
3 The defendant nos.8 to 11 strongly objected the same. It is
their case that pursuant to the warrant of possession issued under Order
21, Rule 35 of Code of Civil Procedure 1908, the judgment debtor did
not vacate the suit premises It is submitted that the applicant has
suppressed the fact that the judgment debtor had moved to the
executing court for setting aside the decree by filing Notice of Motion
No.118 f 2013 in Suit No.4859 of 2004. The executing court rejected
the contentions of the judgment debtor and dismissed the Motion by
order dated 10th April,2017.
4 It is also submitted that the judgment debtor filed an
appeal before the Hon'ble High Court being A.O.No.487/2017. The
Hon'ble High Court also dismissed his the appeal by order dated 17th
July,2017.
5 I have considered the submissions made on behalf of both
the parties.
6 At the outset, admittedly, the decree of possession is
against the husband of the present applicant. She claims to have filed
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an obstructionist proceeding in the execution proceeding pending
before C.R. No.2. She has also filed the suit bearing no.1863/17 for
setting aside the expate decree on the ground of fraud on the court. As
contended by the respondent nos. 8 to 11, the Notice of Motion filed the
judgment debtor for setting aside exparte decree was turned down by
the trial court and the same was confirmed by the Hon'ble High court.
7 Section 74 of the Code of Civil Procedure provides that any
person on behalf of the judgment debtor or at his instigation obstructs
the execution of the decree of possession, the court may at the instance
of the decree holder detain the judgment debtor or such person in civil
prison for a term which may extend to 30 days.
8 In the instant case, the wife of the judgment debtor is
claiming to be in exclusive possession of the suit property. The Hon'ble
High Court has already dismissed the Appeal from Order No.487 of
2017 vide order dated 17th July,2017. I do not find it as a genuine case
for allowing the prayer as sought. No sufficient ground is shown for the
transfer of the suit. Generally, the suits involving same parties with
same subject matter are brought together in one court in order to avoid
conflicting decisions by the two different courts. In this case, there will
not be any question of conflicting orders of the court. The earlier suit is
already decided. Even if the possession is taken during execution, there
is a provision for restitution under Section 144 of Code of Civil
Procedure, in case any decree is passed in favour of the applicant. In
such circumstances, I am not inclined to transfer as prayed and I pass
the following order:
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O R D E R
T.A. No.38/18 stands rejected with costs.
18/04/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
Dictated on : 18/04/2018
Transcribed on : 19/04/2018
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 21/04/2018 (At 11.30 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 18th April,2018
Order signed by P.O. on 20th April,2018
Order uploaded on 21st April,2018
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