Order 1

Order Details: Notice of Motion
Pdf Text: Draft Notice of Motion ..1.. In Execution Appl. No.176/2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
DRAFT NOTICE OF MOTION
IN
EXECUTION APPLICATION NO. 176 OF 2020
IN
S.C. SUIT NO. 7747 OF 1998
(H.C. SUIT NO. 937 OF 1998)
Smt. Sheel Arora,
Age : 71 Years,
Residing At : Flat No. 3,
2nd Floor, The Sind Works Co.Op.
Housing Society Ltd., Sky Scrapper
B Block, Bhulabhai Desai Road,
Bombay - 400 026. ... Applicant
(Org. Defendant No. 1)
In the Matter Between
Madan Mohan Bajaj
Residing At : Flat No. 3,
2nd Floor, The Sind Works Co.Op.
Housing Society Ltd., Sky Scrapper
B Block, Bhulabhai Desai Road,
Bombay - 400 026. ...Plaintiff.
Versus
1. Smt. Sheel Arora,
Age : 71 Years,
Residing At : Flat No. 3,
2nd Floor, The Sind Works Co.Op.
Housing Society Ltd., Sky Scrapper
B Block, Bhulabhai Desai Road,
Bombay - 400 026.
2. Daryanani ( INDOSAIGAON)
Construction Pvt. Ltd. Having it
Office At : 421, Commerce House,
140, Nagindas Master Road,
Mumbai - 400 023.
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Draft Notice of Motion ..2.. In Execution Appl. No.176/2020
3. The Sind Works Co.Operative
Housing Society Ltd.,
Flat No. 3, 2nd Floor, , Sky Scrapper
B Block, Bhulabhai Desai Road,
Bombay - 400 026. ...Defendants.
Appearance :-
Mr. Manoj Aagre, Advocate for Decree Holder.
Mr. Ram Laxmipalli, Advocate for Judgment Debtor.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 29TH JANUARY, 2021.
ORAL ORDER
Perused. Heard.
2. Advocate for Judgment Debtor No. 1 has taken out this
notice of motion and has sought ad-interim stay to execution, operation
and implementation of order dated 11.01.2021 by which the Learned
Registrar of this Court has appointed a Court Commissioner to effect the
partition in accordance with a decree dated 25.09.2018.
3. It is submitted by advocate for Judgment Debtor No. 1 that,
the Learned Registrar has passed an ex-parte order appointing the
Commissioner without giving an opportunity to Judgment Debtor No. 1
to file reply to the Execution Petition and so said order needs to be
stayed. He relied on Kishore H. Desai V/s. Lilawati Virji Chheda and
others, 1990 (1) BCR 160, and submitted that such exparte
appointment of Commissioner cannot be ordered. He also submitted
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Draft Notice of Motion ..3.. In Execution Appl. No.176/2020
that, Sub-Rule (2) of Rule 22 of Order 21 of CPC provides that,
execution application can only be proceeded without notice to the
judgment debtors, if the Court records the reasons that, issuance of
notice would cause unreasonable delay or would defeat the ends of
justice. According to him Learned Registrar has not recorded such
reasons before ordering ex-parte appointment of the Commissioner.
4. Advocate for the decree holder submitted that, the Court
Commissioner is appointed in execution of the judgment and decree
passed by this Court on 25.09.2018. He submits that, since the
direction to appoint the Commissioner is contained in a decree passed
by this Court, the judgement debtors cannot claim that, the
appointment of Court Commissioner is made ex-parte. He relied on
Rule 22 of Order 21 of CPC and submitted that since the application for
execution is filed within two years from the date of decree, the notice to
judgment debtors is not necessary. He also submitted that, by virtue of
order dated 08.08.2019 in Civil Application No. 3868/2018 in First
Appeal No. 1120/2018 the Hon’ble High Court has not stayed the
decree and has allowed the partition proceeding to go on, but has
ordered that actual physical possession of the Judgment Debtor No. 1
shall not be disturbed.
5. Perusal of Rule 22 Sub-Rule (1) reveals that, it casts duty
on the Court to issue a notice to the person against whom the execution
is applied, when the application for execution is made more than two
years after the date of the decree. Sub-Rule 2 carves out an exception
stating that, if the Court finds that issuance of such notice would cause
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Draft Notice of Motion ..4.. In Execution Appl. No.176/2020
unreasonable delay or would defeat ends of justice then the Court may
issue process without issuing the notice.
6. Provisions of Rule 22 of Order 21 of CPC do not prescribe
issuance of notice if an application for execution is made within two
years from the date of a decree. Thus, reliance on provisions of Sub-
Rule 2 of Rule 22 of Order 21 of CPC by the Judgment Debtor No. 1 is
misplaced.
7. The copy of decree dated 25.09.2018 reveals that, the
Court has ordered appointment of Court Commissioner. The Learned
Registrar has merely proceeded with in compliance of such direction
which was not an ex-parte direction by this Court.
8. The Hon’ble High Court in order dated 08.08.2019 in Civil
Appeal No. 3868/2018 in First Appeal No. 1120/2018 has not stayed
the execution of the decree and has allowed the partition proceeding to
go on and has further ordered that actual physical possession of the
Judgment Debtor No. 1 shall not be disturbed. In view of this the
appointment of Court Commissioner in partition proceedings by learned
Registrar is justified.
9. I have gone through Kishore Desai’s case, wherein the ex-
parte appointment of Court Commissioner during pendency of the suit
was in question. In this case, the proceedings is not the suit but is
execution proceeding. In view of this and in view of specific provisions
of Rule 22 of Order 21 of CPC, prima-facie the order of Learned
Registrar need not be stayed.
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Draft Notice of Motion ..5.. In Execution Appl. No.176/2020
10. It is also submitted at bar that, today the Court
Commissioner has visited the suit premises, but could not execute the
commission work, since the judgment debtor No. 1 was absent and
premises were found lock. Naturally the Commissioner has to issue
fresh notices to the parties and then to take steps. In view of this also
no urgency is made out to grant ad-interim relief. Hence, following
order:-
ORDER
1. Ad-interim relief as sought is refused.
2. Leave is granted to register Notice of Motion. It
is made returnable on 05.03.2021.
3. Decree Holder to file reply.
(AJIT N. MARE)
Judge,
Date : 29.01.2021 City Civil Court, Gr. Mumbai.
Dictated On : 29.01.2021
Transcribed on : 30.01.2021
HHJ Signed on : 03.02.2021
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Draft Notice of Motion ..6.. In Execution Appl. No.176/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
03.02.2021 4.33 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 29.01.2021
Order signed by P. O. on 03.02.2021
Order uploaded on 03.02.2021
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