Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.120019
CNR No. MHCC010030882019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1200 OF 2019
IN
EXECUTION APPLICATION NO.359 OF 2015
SUIT NO.4705 OF 1998
Victor Sebastian D'souza & Ors. ...Applicants
Williams Marshall D'Mello ...Plaintiff
V/s.
Chandrakant Shankar Joil & Ors. ...Defendants.
Appearances:
Ld. Adv Vimlesh Singh for applicants.
Ld. Adv Pareira for plaintiff.
Ld. Adv Manisha Salekar for defendant no.3.
Adv. Rahul Rao for defendant nos.2(a).
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 12th APRIL, 2019.
ORDER
1. The applicant nos.1 to 4 have taken notice of motion to
adjudicate and determine the question relating to the executability of
decree dated 27.09.2013 and claim of the applicant in terms of Order
21 Rule 101 of the Code of Civil Procedure, pending and hearing of
final disposal of notice of motion, execution of decree dated 27.09.2013
passed in Suit No.4705 of 1998 be stayed.
2. I have heard parties only of clause (b). Applicant no.2 Sunil
Balkrishna Badekar filed affidavit in support of notice of motion stated
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that applicants are the occupants in respect of the room bearing Room
nos.1 to 4 at the property and they are in possession of respective room
since prior to the suit. They were not joined as a party to the suit. Their
substantive rights are involved. Their contention is that till disposal of
notice of motion, decree be stayed.
3. Plaintiff decree holder filed reply objecting notice of motion.
Plaintiff's contention is that applicant no.1 has been regularly attending
the matter alongwith deceased defendant no.2 and defendant no.2(a).
Notice of Motion is taken with a view to delay execution proceedings.
Plaintiff denied substantive right of the applicants are involved and they
are residing and in possession of suit property.
4. Advocate for applicants further submitted that their rights will be
decided under Order 20 Rule 99, 100103 of the Code of Civil
Procedure, till the decision of their rights, this Court is to stay the
execution. He further submitted that he produced voluminous
documents to show possession of applicants.
5. Advocate for plaintiff submitted that application is nothing but
delay of execution proceedings. They have not contended in what
capacity they are allegedly occupying the room so, what rights of
applicants are to be decided under Order 21 Rule 99 of the Code of
Civil Procedure so, mere seeking stay to execute the decree cannot be
granted.
6. I have gone through the applicants notice of motion and in
support of affidavit, they nowhere stated that in what capacity and since
when they are staying or occupying suit property. If they are not
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claiming their any rights or title independently then how it can be
decided under Order 21 Rule 99 of the Code of Civil Procedure. The
applicants is to specifically mentioned what are their rights and when
they derived their rights so, unless prima facie their rights established in
the property, decree cannot be stayed. Hence, I find that applicants are
not entitled to get interim relief in prayer clause (b) hence, prayer
clause (b) in Notice of Motion no.1200 of 2019 is rejected. Accordingly,
I proceed to pass the following order :
O R D E R
Relief prayer clause (b) in Notice of Motion No.1200 of 2019 is
rejected.
( KALPANA S. HORE )
Judge,
Dated : 12/04/2019 City Civil Court, Gr. Mumbai
Dictated on : 12/04/2019
Transcribed on : 18/04/2019
Signed on : 18/04/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
18.04.2019 4.43 p.m. ARUN ANNAMALAI MUDALIYAR
Name of the Judge (With Court
Room No.)
HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
12.04.2019
JUDGEMENT /ORDER signed by
P.O. on
18.04.2019
JUDGEMENT /ORDER uploaded
on
18.04.2019
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