Interim Order 1

Order Details: Order below exhibit
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.1
IN
EXECUTION APPLICATION NO.86 OF 2019
IN
SUIT NO.10863 OF 1976
The Board of Trustees of the Port of Bombay ] ...Plaintiff/
Decree holder.
V/s.
Smt. Asmabai Wd/o. M.A. Lakdawala & ORS. ] ...Defendants.
Appearances:
Mr. Mehta, Ld. Advocate for plaintiff presents.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 18th February, 2020
ORAL ORDER
1. Perused Execution application and written Notes of
arguments filed by plaintiff / Decree holder Advocate on 03022020.
2. In brief, it is contention of the plaintiff that Suit No.863 of
1976 is decreed by Judgment dated 29.01.2016. As per the said
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.. 2 .. OBE-1 in Execution Appl.86-1976 in SU 863-76
Judgment and decree defendant Nos.1, 4 to 9 directed to deliver vacant
peaceful possession of the plot. The said defendants further directed to
pay some compensation as mentioned in the decree to the plaintiff etc.
Defendants are served with Notice under Order XXI Rule 22 of the Code
of Civil Procedure. They did not appear. Therefore the decree be
executed.
3. I have gone through the record. It appears that Suit
No.863 of 1976 is decreed as per Judgment dated 29.1.2016. The
operative Order passed in the said Judgment runs as under:
ORDER
“1] The suit is decreed with costs.
2] Defendant Nos.1, 4 to 9 shall deliver vacant
possession of the plot of land bearing No.176 on the
Mazgaon Reclamation Estate admeasuring 480 4/9
Square Yards together with building standing thereon,
within the boundaries, surrounded towards the North
by Port Trust 4th cross street, towards the South by Port
Trust plot No.127/A, towards the East by Port Trust
Plot No.175 and towards the West by Port Trust
Mazagaon Street, as referred in Exhibit No.A of the
plaint.
3] Defendant Nos.1, 4 to 9 do pay to plaintiff sum
of Rs.10,199.67 as compensation at the rate of Rs.
784.59, till vacant possession of the suit premises is
handed over to plaintiff.
4] Defendant Nos.1, 4 to 9 are ordered to pay to
plaintiff sum of Rs.142/ being storage charges due at
the rate of Rs.142/ for every four months, till the
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.. 3 .. OBE-1 in Execution Appl.86-1976 in SU 863-76
delivery of the possession of suit property to plaintiff.
5] Defendant Nos.1, 4 to 9 are ordered to pay to
plaintiff interest at the rate of Rs.10% per annum on
due amount from the respective due dates, till the
realization of full amount.
6] The amounts paid by the Defendant Nos.1, 4 to 9
to the Court Receiver and paid to plaintiff by the Court
Receiver shall be adjusted towards the decreetal
amount.
7] In view of deletion of name of defendant No.3
from the array of defendants the suit is disposed off
against him. The suit is disposed off against Defendant
Nos.2 and 2(a) in view of withdrawal.
8] The defendant No.10, the Court Receiver shall
submit fresh details of accounts of the receipts and
expenditure and shall deposit the amount in the Court,
which is at his hand towards rent/ compensation
received from the defendants towards the arrears.”
4. Perused Order passed below Exh.1 dated 16.1.2020. As
per said order the Execution Application is proceeded exparte against
the defendants. The decree holder mentioned in the Execution
Application to issue Notice under Order XXI Rule 22 of the Code of Civil
Procedure against the defendant and to issue warrant of possession
under Order XXI Rule 35 of the Code of Civil Procedure in respect of the
suit premises. It is specifically mentioned in the Execution Application
that the decree is sought to be executed against the defendant No.1 and
defendant No.4 to 9. It is also mentioned in the Execution application
that plaintiff reserved his right to take out separate Execution
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.. 4 .. OBE-1 in Execution Appl.86-1976 in SU 863-76
Application for recovery of arrears after taking possession of the suit
premises.
5. Perused the written Notes of arguments. The Learned
Advocate appeared for plaintiff relied upon Judgment of the Hon'ble
Supreme Court of India in the case of Vasudev Dhanjibhai Modi Vs.
Rajabhai Abdul Rehman and others, 1970(1) Supreme Court Cases 670.
The Hon'ble Supreme Court of India held that A Court executing a
decree cannot go behind the decree between the parties or their
representatives. It must take the decree according to its tenor, and
cannot entertain any objection that the decree was incorrect in law or
on facts. Until it is set aside by an appropriate proceeding in appeal or
revision, a decree even if it be erroneous it still binding between the
parties.
6. The Learned Advocate appearing for plaintiff also relied
upon Judgment of Hon'ble Supreme Court of India in the case of
Ashoka Marketing Ltd and Another Vs. Punjab National Bank and
Others (1990) 4 Supreme Court Cases 406. It is held Government while
dealing with the citizens in respect of property belonging to it would
not act for its own purpose as a private landlord but would act in public
interest.
7. The Learned Advocate appearing for plaintiff submits that
the matter is old one i.e. almost 40 years old case, therefore decree be
executed immediately.
8. Perused Order XXI Rule 35 of the Code of Civil Procedure.
As per the said provisions where a decree is for the delivery of any
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.. 5 .. OBE-1 in Execution Appl.86-1976 in SU 863-76
immovable property, possession thereof shall be delivered to the party
to whom it has been adjudged, or to such person as he may appoint to
receive delivery on his behalf, and, if necessary, by removing any person
bound by the decree who refuses to vacate the property.
9. The Board Department of Writ Section was directed to
inform whether there is any stay to the decree. The Board Department
informed today in writing that no writ has been received so far from the
Hon'ble High Court in this Execution Application.
10. Inspite of service of notice under Order XXI Rule 22 of the
Code of Civil Procedure the defendant No.1 and 4 to 9 did not remain
present. The Execution Application is proceeded exparte against them.
Nothing is on record to show that the said decree is stayed. Hence, this
is fit case to issue writ of possession under Order XXI Rule 35 of Code of
Civil Procedure on required process fee. Hence following order:
ORDER
Order below Ex.01 is allowed as under
Issue writ of possession under Order 21 Rule 35 of Code of Civil
Procedure on required process fee against defendant nos. 1, 4 to 9 to
hand over possession of the suit premises to the plaintiff i.e. specifically
mentioned in judgment and decree passed in Suit no. 10863/1976.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 18/02/2020 City Civil Court, Gr. MUMBAI
Dictated on : 18.02.2020
Transcribed on : 20.02.2020
Signed on : 20.02.2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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.. 6 .. OBE-1 in Execution Appl.86-1976 in SU 863-76
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.02.2020 at 03.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 18.02.2020
Judgment/order signed by P.O. on 20.02.2020
Judgment/order uploaded on 28.02.2020
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