Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.852 OF 2020
(CNR NO.MHCC010022862020)
IN
B.C.C.C. SUIT NO. 4629 OF 2008
(HIGH COURT SUIT NO.2759 OF 2008)
Ravikumar Ashokmal Lodha ].. Plaintiff.
V/s.
Edelweiss Securities Ltd. & others ]..Defendants.
Advocate Mr. B.N. Jadhav I/b Rustamji and Ginwala for the
plaintiff.
Advocate Mr. Abdul Wahab for the defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.15).
DATE : 4th OCTOBER 2021
ORDER
The Notice of Motion is filed for the prayer of revival of
interim order passed on 04/02/2009 in Notice of Motion No. 3511 of
2008 in Suit No. 4629 of 2008.
2. The suit was instituted for the relief of declaration,
mandatory and permanent injunction. It appears from the Roznama
that my learned predecessor was pleased to dismiss the suit on
10/01/2020 for want of prosecution. It is the case of plaintiff that the
honourable Bombay High Court had passed the interim orders on
05/11/2008 and 04/02/2009 in favour of plaintiff. When the suit was
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dismissed, the effect of those orders came to an end. My learned
predecessor was pleased to restore the suit on 03/02/2020. However,
no order regarding revival of the interim orders passed in the suit
before dismissal was specifically passed. Hence, plaintiff has filed this
Notice of Motion for revival of those orders.
3. I have heard both learned advocates. I have gone through
the record and proceeding.
4. Learned advocate for plaintiff relied upon judgment in the
case of Vareed Jacob Vs Sosamma Geevarghese reported in 2004 (2)
K L J 641 (S C). It is held that,
17. In the case of Shivaraya v. Sharnappa [AIR 1968
Mys 283 : (1967) 1 Mys LJ 414] it has been held that
the question whether the restoration of the suit revives
ancillary orders passed before the dismissal of the suit
depends upon the terms in which the order of dismissal
is passed and the terms in which the suit is restored. If
the court dismisses the suit for default, without any
reference to the ancillary orders passed earlier, then the
interim orders shall revive as and when the suit is
restored. However, if the court dismisses the suit
specifically vacating the ancillary orders, then
restoration will not revive such ancillary orders. This
was a case under Order 39.
18. In the case of Saranatha Ayyangar v. Muthiah
Moopanar [AIR 1934 Mad 49 : ILR 57 Mad 308] it has
been held that on restoration of the suit dismissed for
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default all interlocutory matters shall stand restored,
unless the order of restoration says to the contrary.
That as a matter of general rule on restoration of the
suit dismissed for default, all interlocutory orders shall
stand revived unless during the interregnum between
the dismissal of the suit and restoration, there is any
alienation in favour of a third party.
5. In the circumstances, it is clear that the orders which were
passed in favour of plaintiff or defendant during the pendency of Suit
No. 4629 of 2008 will be revived automatically. It is necessary to
record the said fact as per the prayer of plaintiff. Learned Advocate for
the defendant also submits that necessary orders may be passed in view
of the judgment of Hon’ble Apex Court. Therefore, I have come to the
conclusion that the Notice of Motion deserves to be allowed.
Accordingly, I proceed to pass following order.
O R D E R
1. Notice of Motion No.852 of 2020 is hereby
allowed.
2. It is recorded that, the orders passed by the
Hon'ble High Court on 05/11/2008 and
04/11/2009 in High Court Suit No. 2759 of 2008
are revived automatically.
3. All the parties are directed to act accordingly.
4. As the player clauses (c) and (d) have become
infructuous due to the revival of earlier orders,
these players are rejected not on merits but due to
revival of the earlier orders.
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5. Notice of Motion 852 of 2020 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 04.10.2021 Gr.Mumbai.
Dictated on : 04.10.2021
Typed on : 04.10.2021
Signed on : 04.10.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
11.10.2021 AT 5.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
no.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.15)
Date of Pronouncement of
Judgment/Order
04/10/2021
Judgment/Order signed by P.O. on 04/10/2021
Judgment/Order uploaded on 11/10/2021
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