Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Execution 196/2022
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
EXECUTION APPLICATION NO. 196 OF 2022
AND
NOTICE OF MOTION NO. 1160 OF 2019
IN
SUIT NO. 408 OF 2019
MHCC010061602022
EXECUTION APPLICATION NO. 196 OF 2022
Mr. Virendra Prasad Girijaprasad Shukla ...Plaintiff
Vs.
1. Smt. Kantidevi Girija Prasad Shukla
2. Mr. Rajendra Girija Prasad Shukla … Defendants
MHCC010030282019
NOTICE OF MOTION NO. 1160 OF 2019
Mr. Virendra Prasad Girijaprasad Shukla ...Plaintiff
Vs.
1. Smt. Kantidevi Girija Prasad Shukla
2. Mr. Rajendra Girija Prasad Shukla … Defendants
AND
3. Sr. Inspector of Police,
Nagpada Police Station, Mumbai … Respondent.
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Appearance
Learned Advocate Mr. M.A. Ansari for the plaintiff.
Learned Advocate Mr.Deepak Trivedi for defendant No.1.
Learned Advocate Mr. Siddhartha Dustakar for defendant No.2.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 4th September, 2023
C O M M O N O R D E R
1. The plaintiff namely Virendraprasad Girijaprasad Shukla is
seeking execution of the interim order dated 25.02.2019 passed by this
Court, whereby this Court observed that there is no dispute that the
suit No.545/2017 between the same parties herein was decreed under
Order 12 Rule 6 of the CPC in terms of prayer clauses (a) and (b)
where under the plaintiff and defendants have been held to have 1/3rd
share each in suit property i.e. Room No.501, 5th Floor, Panchratna
Building, 14th Lane, Nagpada, Mumbai, admeasuring about 180 sq.ft.
The said suit bearing No.408/2019 is filed for demarcating 1/3rd share
of each party. The court ordered that till the disposal of the notice of
motion, the plaintiff and defendant No.1 are permitted to demarcate
their area by temporary partition which can be removed at any time.
By the said order it was also noticed that another Suit No.114/2019
which is filed by the present defendant No.2 i.e. Rajendraprasad Shukla
seeking modification of the decree passed in former suit i.e. Suit
No.545/2017 and also that defendant No.2 is at liberty to get both the
suits i.e. Suit No.408/2019 and Suit No.114/2019 clubbed together.
2. From the perusal of the record, it is not in dispute that both
the parties are in joint use, occupation and possession of the suit
premises which admeasure 180 sq.ft. It is also revealed that so as to
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implement the said order dated 25.02.2019, the plaintiff Virendra
Prasad Shukla sought police assistance/aid/help and this Court vide
order dated 23.05.2022 expressed its opinion that the said order dated
25.02.2019 being executable order, in absence of filing execution
proceeding the prayer for grant of police protection cannot be accepted
and the notice of motion No.1160/2019 was kept for hearing on the
next date, since the advocate for defendant No.2 was not available. In
view of the said order dated 23.05.2022, the plaintiff filed execution
application bearing No.196/2022 to execute the said order dated
25.02.2019 by appointing the Court Commissioner for effecting
temporary partition of the suit premises by demarcating 1/3rd share of
the plaintiff and the defendants and for issue of warrant of attachment
under Order 21 Rule 54 of the CPC.
3. From the perusal of the record, it is also obvious that the
present defendant Rajendra Shukla had preferred an Appeal From
Order (St.) No.6977/2019 before the Hon’ble Bombay High Court
challenging the said order dated 25.02.2019 passed by this Court in
Suit No.408/2019 directing the parties to carry out the partition in the
suit premises temporarily as per the judgment and decree dated
26.10.2018 passed in S.C. Suit No.545/2017. The Hon’ble Bombay High
Court after considering the matter did not find any reason to interfere
in the said order in view of the judgment and decree passed in S.C.Suit
No.545/2017 and ultimately, the said Appeal came to be dismissed.
4. The defendant Rajendra Shukla vide his affidavit in reply
in notice of motion No.1160/2019 opposed the prayer for taking police
protection. According to him, as per the order dated 25.02.2019 there
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is no mention as to who is to demarcate the 1/3rd share of each of the
party in suit premises. According to him, it is the MHADA authority
who has allotted the suit premises on tenancy basis and the suit
premises consist of common kitchen, common mori, common toilet and
common wooden bench which admeasures 6’ x 4’, 5’ x 4’, 5’ x 4’ and 8’ x
2’ respectively. According to him, remaining area of the suit premises is
100 sq.ft. According to him in view of Section 66 (1) (a) (iv) of the
MHADA Act, there cannot be any addition or alteration without the
permission of the MHADA Authority. It is also his contention that the
MHADA Authority or any qualified person can prepare draft
demarcation plan and submit it for approval of this Court. Thus
defendant No.2 Rajendra would not dispute for effecting temporary
partition of the suit premises if it is demarcated by the MHADA Officer
or any other qualified person.
5. Though it seems that the defendant Rajendra has filed the
suit bearing No.114/2019 against his brother Virendra and mother
Kantidevi for modification of said decree dated 26.10.2018 passed
under Order 12 Rule 6 of the CPC in suit No.545/2017 to claim that he
has half share in the suit premises by virtue of family settlement dated
24.07.2007. However, it is a fact that said Rajendra who was the
plaintiff in said Suit No.545/2017 though referred the said family
settlement dated 24.07.2007 in the said suit, he has sought declaration
of his 1/3rd share (and not one half share) in the suit premises and the
decree of injunction against his said brother Virendra and mother
Kantidevi.
6. In the aforesaid premises since defendant Rajendra is not
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disputing temporary partition of the suit premises in terms of the said
decree passed in S.C. Suit No.545/2017 by appointing the Court
Commissioner to any expert person or a MHADA Officer, the said order
dated 25.02.2019 needs to be enforced and executed as sought for in
the Execution Application No.196/2022. In these circumstance, if the
police aid as sought for by the plaintiff Virendra is granted there will be
no harm to the defendant Rajendra or anyone else. Hence, the
plaintiff’s prayer for appointment of Court Commissioner for effecting
temporary partition in the suit premises in terms of the decree dated
26.10.2018 passed in S.C. Suit No.545/2017 under Order 12 Rule 6 of
the CPC and for grant of requisite police aid while effecting such
partition in the suit premises will have to be allowed at the costs of the
plaintiff Virendra.
7. At this stage the learned Counsel Mr. Ansari appearing for
the plaintiff would make submission that instead of appointing MHADA
Official as a Court Commissioner, it would be appropriate to appoint
any private Architect for temporary dividing the suit premises, so that
the said process can be effected without any amount of delay. It is also
informed that the Registry of this court has a panel for effecting such
partition. Hence, I proceed to pass the following order :
ORDER
1. Execution Application No.196 of 2022 and Notice of Motion
No.1160 of 2019 stands allowed.
2. Mr Anil Laxman Korgaonkar, Architect, is appointed as a Court
Commissioner for effecting temporary partition of the suit premises
by demarcating 1/3rd share each of the plaintiff Mr. Virendra
Prasad Girijaprasad Shukla, defendant No.1 Kantidevi Girija Prasad
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Shukla, defendant No.2. Mr. Rajendra Girija Prasad Shukla in terms
of the Order dated 25.02.2019 passed by this Court based upon the
decree passed by this Court in S.C. Suit No.545/2017 on
26.10.2018 under Order 12 Rule 6 of CPC subject to payment of
reasonable fee/remuneration of the Court Commissioner by the
plaintiff Virendra Prasad Shukla.
3. The Sr. Inspector of Nagpada Police Station, Mumbai, is directed
to make available suitable number of police personnel to the
plaintiff Virendra Prasad Girijaprasad Shukla while effecting
temporary partition of the suit property i.e. Room No.501, 5th Floor,
Panchratna Building, 14th Lane, Nagpada, Mumbai, on payment of
requisite charges therefor by him.
4. It is made clear that the expenses of erecting such temporary
partition shall be borne by the plaintiff Virendra Prasad
Girijaprasad Shukla.
5. Registrar (Civil) to issue appropriate Writ to the Court
Commissioner.
6. The plaintiff shall make available the requisite documents such
as the copy of decree passed in S.C.Suit No.545/2017, order dated
25.02.2019 passed by this Court for temporary partition of the suit
premises, etc., to the Court Commissioner who will give prior
notice to the parties.
7. The Court Commissioner shall submit his report to this Court on
or before next date.
Date : 04.09.2023 (V. M. Pathade)
Dictated on : 04/09/2023. Judge, C.R.No.62,
transcribed on : 05/09/2023. City Civil Court,
Signed on : 06/09/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.09.2023 at 3.00 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 09/09/2023
Order signed by P.O. on 06/09/2023
Order uploaded on 08/09/2023
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