Final Order 1

Order Details: Other
Pdf Text: Exhibit-1 in Execution
Appl.No.81/2019 1 SU.No.4565-2008
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
ORDER BELOW EXHIBIT-1
IN
EXECUTION APPLICATION NO.81 OF 2019
IN
S. C. SUIT NO.4565 OF 2008
Kishor Krishna Gurav
.. Decree Holder
Versus
Dattaram Krishna Gurav and anr.
.. Judgment Debtor
CORAM : HIS HONOUR JUDGE
SHRI. U. C. DESHMUKH
COURT ROOM NO.03
DATE : 14/10/2025
ORDER BELOW EXHIBIT-1.
The Court called the recording and proceeding of the suit
on 11.07.2025. On perusal of plaint it is seen that the plaintiff had not
described the suit property in terms of Clause 7 Rule 3 of Code of Civil
Procedure (for short,Code) and no document like property card, share
certificate, photo-pass or equivalent documents in terms of para 8
Chapter II of the Civil Manual is filed. Therefore vide order dated
11.7.2025 the plaintiff was asked how the decree is executable in
absence sufficient description of the suit property in terms of Clause 7
Rule 3 of Code is given and documents like property card, share
certificate, photo-pass or equivalent documents in terms of para 8
Chapter II of the Civil Manual are filed.
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2. On 04.10.2025 learned advocate for the plaintiff/Decree-
holder filed copy of property card in respect of Cadastral Survey No.
350 at Exh.11 alongwith list Exh.10. He was asked whether the decree
holder intends to take steps to cure defects as to description of the
property. He relied upon the property card, report of the Court
Commissioner, which is at Exh.12 and decision of Hon'ble High Court in
Shankarlal Nagpure V/s. Pramodkumar Agarwal 2018 (3) ALL MR 22.
Accordingly the matter was reserved for necessary order.
3. At the outset, it is apt to note that this is an application for
execution of decree dated 29.11.2018, whereby the suit for partition in
respect of suit property i.e. 24/26, ground floor, Jamunagari Chawal,
Patel streets, Banganga cross lane, Mumbai - 400006 is decreed.
4. It is submission of learned advocate for the plaintiff/decree
holder that a map/s, which are annexed with list of document at
Exh.10, property card at Exh.11 and report of the Court Commissioner
dtd. 28.04.2022, at Exh.12 are sufficient to say that the suit property is
properly described. Thus, it has to see whether there is substance in his
submission and decree is executable.
5. Hon'ble Supreme Court in Sanwarlal Agrawal & Ors. Vs.
Ashok Kumar Kothari & Ors. in Civil Appeal No(s).1312-1313 of 2023
has observed that it is undeniable that an Executing Court can construe
a decree if it is ambiguous. The Hon'ble Apex Court in Periyammal
(Dead) Through Lrs. & Ors. Vs. V. Rajamani & Anr. Etc. in Civil Appeal
Nos.3640-3642 of 2025 deal with therein exhaustively with procedural
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aspects of execution of decree. The Hon'ble Apex Court has dealt
extensively with the power and procedure to be followed by Executing
Court. The Hon'ble Apex court reiterated the settled principle of law
that the Executing Court cannot go beyond the decree. It is also
observed that all questions with regard to the execution of decree
arising between the party to the suit has to be decided by the Executing
Court.
6. The observation of Hon'ble Apex Court in para No.42.5
referred in para No.73 in Periyammal (supra) are also relevant, hence,
reproduced herein:
“42.5. The court must, before passing the decree, pertaining to
delivery of possession of a property ensure that the decree is
unambiguous so as to not only contain clear description of the property
but also having regard to the status of the property.”
7. The Hon'ble Apex Court in case of Rahul S Shah Vs.
Jinendra Kumar Gandhi & Ors. [(2021) 6 SCC 418] held that the Court
must before passing a decree with regard to delivery of possession of
the property ensure that the decree is unambiguous so as to not only
contains a clear description of the property but also having regard to
status of the property. In Sanwarlal Agrawal (supra) the Hon'ble Apex
Court has referred its own decision in Rajinder Kumar Vs. Kuldeep
Singh [(2014) 15 SCC 529], wherein the Apex Court observed that if
there is any ambiguity in the decree it is for the Executing Court to
construe the decree, if necessary after referring to the Judgment. If
sufficient guidance is not available even for the Judgment, the Court is
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even free to refer to the pleadings so as to construe true impact of the
decree.
8. Decree in question has attained finality. There is no
question arisen between parties to the suit. The Court suo motto has
directed the decree-holder to comply provisions under Order VII rule III
of the Code and produce a property card or equivalent documents in
terms of para 8 Chapter II of the Civil Manual. The Court has asked the
decree-holder to produce the property card and to take steps to cure
defects in the decree. Therefore, it has to see whether non-production of
property card is an impediment in execution of decree. Hence, relevant
provisions of para 8 of Chapter II of the Civil Manual, are reproduced
as:
“8. The next step is the examination of the plaint in order to
determine whether it should be-
(a) admitted; or
(b) rejected (Order VII, Rule 11); or
(c) returned for presentation to the proper Court. (Order VII, Rule
10), or after strictly following the procedure envisaged in new Rule
10-A, Order VII of Civil Procedure Code, as amended by Act, 104
of 1976.
(d) returned for amendment on the ground that it is not framed as
required by law. This examination should be particularly directed
to ascertaining
(i) Whether the forms provided in Appendix ‘A’ of the Code
are followed as far as is reasonably possible (Order VI, Rule
3);
(ii) Whether names and addresses of parties are properly
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described in title;
(iii) Whether the plaint is properly signed (Order VI, Rule
14);
(iv) Whether it is duly verified (Order VI, Rule 15);
(v) Whether it complies with the requirements of Order VII,
Rules 2, 4 and 6;
(vi) Whether it is properly valued and stamped;
(vii) Whether a certified copy of extract of Record of Rights
is produced or not when the suit is in respect of agricultural
land; or whether the property extract of City Survey is
produced or not when the suit is in respect of immovable
property other than agricultural lands.”
9. The plaintiff/decree holder has relied upon a map filed
with Exhibit-10 produced on 04.10.2025. Admittedly said map/s is /are
not issued by public authority and does / do not pertain to Cadastral
Survey No.350. Moreover as aforesaid Cadastral Survey Number 350 is
not mentioned in the plaint. Therefore, such map/s and property card
in respect of Cadastral Survey No.350 can not be taken in to
consideration to say that the plaint was is duly instituted. Likewise
report at Exh.12. It is also necessary to note that the property card at
Exh.11 is silent as to name of persons mentioned in the plaint. On these
count also the property card in respect of Cadastral Survey No. 350 is
altogether irrelevant. Thus, it is seen that the plaint was not duly
instituted.
10. If in absence of compliance of provisions under Clause VII
para 8 Chapter II of the Civil Manual the decree is executed it may
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amount to help the person who had not instituted the plaint duly or he
might have no such right, title or interest over the property in question.
Mere non resistance or an admission as to description of the suit
property is not sufficient to say that the plaintiff has right or interest
over the suit property which he claims particularly when such property
is not identified in the eyes of law. In the result, following order is
passed:
Order
1. An Execution Application No. 81 of 2019 stands rejected.
2. Accordingly proceeding is closed.
(U. C. DESHMUKH)
Judge,
City Civil Court, Greater Bombay
Dated : 14.10.2025 C.R. No.03
Dictation Typed on : 14.10.2025
Checked & Signed on : 14.10.2025
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