Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Sum.Suit No.406/2018 1
Registered on : 02.04.2018
Decided on : 02.02.2019
Duration : 00 08 00
Y M D
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMARY SUIT NO.406 OF 2018
Baban Devaji Jankar, Age 50 yrs.
Of Mumbai, an adult Indian Inhabitant
carrying business of money lending
at and from Vijay Niwas, Jivdaya Lane,
L.B.S. Marg, Ghatkopar (West)
Mumbai400086. .....Plaintiff
V/s.
Smt.Theresa Shah
Age not known
of Mumbai, an adult Indian Inhabitant,
residing at Kripa B/22,23,
Ground Floor, Snehsagar Colony,
Mount Marry Steps,
Bandra (W), Mumbai – 400050. ....Defendant
CORAM :HIS HONOUR JUDGE
SHRI. M.M.UMAR
(C. R. No.: 28)
DATED :02/02/2019.
Advocate Mr.Ramesh Jain for the plaintiff
Exparte against defendant.
EXPARTE JUDGMENT
1. Plaintiff has filed this summary suit for recovery of an amount
of Rs.63,019/ alongwith further interest at the rate of 18% p.a. on the
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Sum.Suit No.406/2018 2
principal sum of Rs.50,000/ from the date of filing of the suit till its
realization.
2. The facts of the case can be briefly stated as under:
It is the case of plaintiff that he is carrying on business of money
lending and having moneylender's license. On 2/9/2016 deceased
executed a Promissory Note of Rs.50,000/ in favour of plaintiff and
agreed to pay interest at the rate of 18% p.a.on the said amount. The
plaintiff paid the said amount to the deceased and thereafter he
executed and handed over the promissory note to the plaintiff. It is
contended that the deceased expired and plaintiff came to know that
the defendant is the sole legal heir being wife of the deceased. The
plaintiff issued a letter to the defendant on 16/1/2018 and requested
her to pay the said amount but the defendant did not comply the same.
It is contended that the defendant is in control and charge of all the
assets and property left by the deceased. Consequently, the plaintiff has
filed the present suit.
3. The plaintiff has filed on record affidavit of service of summons
at Exhibit 5. Defendant inspite of service of writ of summons did not
appear in the suit.
4. Plaintiff has filed his affidavit of evidence in support of suit
claim at Exhibit 6, in which he has reiterated the contents of plaint,
elaborately. So also, he has filed the List of documents at Exhibit 7. He
has filed the documents like Demand Promissory Note dated 2/9/2016,
Advocate's letter dated 16/1/2018 etc.
5. It is pertinent to mention here that Order 37 does not exclude
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Sum.Suit No.406/2018 3
from its purview, where the heirs and legal representatives of the
deceased as party defendants. Nor is there any protection under the
Civil Procedure Code to the heirs and Legal representatives of deceased
defendant from the decree being passed against them, provided of
course, that the right to sue them survives. The protection which
Section 52 of Civil Procedure Code gives to the heirs and the legal
representatives of a defendant is a protection against the enforcement
of a decree, against them in execution. Under Section 52 where a
decree is passed against a party as a legal representatives of a deceased
person and the decree is for the payment of money out of the property
of deceased, it may be executed by attachment and sale of such
property. The decree can be executed to the extent of property of
deceased in his hand. This is a protection which is granted at the stage
of execution. Hence, even the case where a decree is passed against
such an heir or legal representative under Order 37 of the Code of Civil
Procedure, the decree can be executed only the extent of estate of the
deceased, coming to his hands. Hence, in view of the above discussion
and as the legal heirs of deceased defendant, have failed to put their
appearance and contest the suit therefore, in these circumstances in
view of the provisions of subrule2 of Rule3 of Order XXXVII of
C.P.Code, the averments made by the plaintiff in the plaint are deemed
to be admitted. There is nothing on record to disbelieve the oral and
documentary evidence placed on record by the plaintiff. Hence, in view
of the matter, the plaintiff is entitled for the decree as prayed alongwith
interest @ 9% p.a. from the date of filing of the suit till its realization.
In the result, following order.
: ORDER :
1. The Summary Suit No.406/18 is decreed with costs.
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Sum.Suit No.406/2018 4
2. The plaintiff is at liberty to recover an amount of Rs.63,019/ at
the rate of 9%p.a. from the date of filing of the suit till its realization,
from the Estate of the deceased original defendant viz.Rupesh Paul
Shah, in the hands of his legal heirs i.e. widow of deceased.
3. The plaintiff shall intimate to the defendant by Registered Post
Acknowledgement Due, regarding this Exparte decree, well before filing
the execution proceeding.
4. Decree shall be drawn up accordingly.
(M.M.UMAR)
Judge,
Date : 02/02/2019 City Civil Court, Gr. Bombay
Dictated on : 02/02/2019
Transcribed on : 02/02/2019
Signed on : 05/02/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
5/2/19 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
2/2/19
Judgment/order signed by P.O on 5/2/19
Judgment/order uploaded on 5/2/19
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