Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1193/2019 in S.C. Suit No.4705/1998
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1193 OF 2019
CNR NO.: MHCC010030642019
IN
EXECUTION APPLICATION NO. 359 OF 2015
IN
SHORT CAUSE SUIT NO. 4705 OF 1998
Williams Marshall D'mello ...Plaintiff
Versus
Chandrakant Shankar Joil and others ...Defendants
Appearances:
Advocate Mr. V. E. Pereira for the plaintiff.
Advocate Ms. Manisha for defendant Nos. 2(a) to 2(d).
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 17th OCTOBER, 2019.
ORAL ORDER
This is a Notice of Motion filed by defendant praying that the
decree passed in S.C. Suit No. 4705 of 1998 be stayed till appeal against
the same is disposed off. It is further prayed that by an Order of
injunction defendant No.3 be restrained from taking any action under
Section 488 of the Mumbai Municipal Corporation Act (“MMC Act” for
short) till appeal is filed by defendants from the Judgment and Order
passed in S.C. Suit No.4705/1998 is disposed off. It is further prayed
that till the hearing of Execution Application an Order of injunction be
passed against defendant No.3 from taking any action pursuant to the
Notice under Section 488 of the MMC Act.
2. Plaintiff has filed reply to this Notice of Motion and stated that
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:2: N.M. No.1193/2019 in S.C. Suit No.4705/1998
suit was decreed on merits and defendant Nos.1, 2 and 4 failed to
remove the unauthorised construction and therefore, plaintiff has taken
out this Execution proceedings for directing warrant of detection to be
issued against defendant No.3. It is further stated that after death of
defendant No.2 his legal heirs were brought on record. It is further
stated that after bringing the legal heirs on record defendant No.2(a)
has given evidence also. Plaintiff has further denied material allegations
and contentions of defendant and prayed that no stay be granted.
3. Parties have produced Order passed in Civil Application Nos.
2391/2019 and 2392/2019 filed in First Appeal (ST) No.8739/2019
filed against Long Cause Suit No.4705/1998. It appears that as per
Order passed by the Hon'ble High Court, the Civil Application is rejected
and registration of the First Appeal is also rejected. It appears that the
present Notice of Motion is filed praying for stay till disposal of Appeal.
It appears the Appeal is disposed off.
4. Defendant has stated that they were blessed with grandson
therefore, could not attend the Court and she was assured by advocate
that he will take care of the matter and inform whenever required to be
presented before the Court. She has further stated that she attended the
matter whenever told by her advocate till 25th September, 2013, i.e. 2
days before the impugned Judgment was delivered on 27th September,
2013. She has further stated that she was not informed that the case
was disposed off. It is further stated by her that they were served with
Execution Application in December, 2016. It is further stated that
defendant's nephew went missing in May, 2014 and not found till date
and therefore, defendant lost her father in May, 2016. It is further
stated that there were domestic disputes in her family between period
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:3: N.M. No.1193/2019 in S.C. Suit No.4705/1998
20162018. It is further stated that in July 2018, defendant 2(c) shifted
to Canada and therefore, family members were in mental and emotional
stress and therefore, lost the track of the matter. It is further stated by
defendant that they received Notice from the defendant No.3 dated 5th
March, 2019.
5. From such submissions of defendant it appears that defendant
had knowledge that suit was pending and its had knowledge till 2 days
before the Judgment was passed. As per their submissions itself they
received Execution Application in December, 2016 and thereafter Notice
from defendant No.3 on 5th March, 2019. In the circumstances that now
the Civil Application No.2391 of 2019 filed with First Appeal (ST)
No.8739/2019 against the decree passed in suit is rejected and on the
grounds stated above by the defendant that their nephew went missing,
there were family problems, it will not be proper to stay the Execution
proceedings or pass any injunction Order.
6. As discussed above, it appears that Civil Application No.2391 of
2019 and registration of First Appeal No. 8739 of 2019 is rejected. As
discussed above, there are no reasonable grounds to stay execution of
the decree and judgment. Hence, pass following order:
ORDER
Notice of Motion No. 1193 of 2019 stands rejected.
(SONALI P. AGARWAL)
Adhoc Judge,
Date: 17.10.2019. City Civil Court,
Gr. Bombay.
Dictated on : 17.10.2019
Transcribed on : 17.10.2019
Signed on : 17.10.2019
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:4: N.M. No.1193/2019 in S.C. Suit No.4705/1998
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.10.2019 At 11:58 a.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
17.10.2019
Judgment/Order signed by P.O. on 17.10.2019
Judgment/Order uploaded on 22.10.2019
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