Order 1

Order Details: Other
Pdf Text: Exe. Appln.89-19 1 S.C. Su.6298-04
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
EXECUTION APPLICATION NO.89 OF 2019
IN
S.C. SUIT NO.6298 OF 2004
(HIGH COURT SUIT NO.381 OF 2004)
(CNR NO. MHCC010031942019)
Jeanetta Stella Rodricks & Others …. Plaintiffs
Versus
Theresa Rodricks & Others …. Defendants
Appearance:
Shri. Clive D'Souza, Advocate for plaintiff/ DH.
Shri. D'Mello, Advocate for defendant Nos. 1, 2 & 5.
CORAM: HHJ SMT. S.S. NAGUR
AdHoc Judge
C.R. NO.13
DATE : 04/12/2019.
ORDER
1) The execution petition is filed by DH. The JD has filed reply and
has objected to handover the possession only to the DH (plaintiff). It is the
contention of the JD that to execute decree it is necessary that the defendant
No.3 and 4 should remain present at the time of handing over the possession
and to execute the receipt.
2) Heard Advocate Shri. C.D’Souza for DH and Advocate Shri.
D’Mello for defendant No.1,2 and 5. Advocate D’Mello for JD has drawn my
attention to the decree passed bythe court that unless and until the defendant
No.3 and 4 of the suit are present to take back the possession it will not be
possible to handover possession to the plaintiff. The JD is ready to execute
decree provided the defendant No.3 and 4 are present and they execute the
receipt. It is the JD who has written letter to the plaintiff and defendant No.3
and 4 and has fixed a date to handover possession to plaintiff and defendant
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No.3 and 4 failed to remain present.
3) Advocate Shri. D'Mello for judgment debtor has relied on authority
reported in,
i) Vasudev Dhanajibhai Modi V/s.Rajabhai Abdul
Rehman & Ors. AIR 1970 SC 1475; ii) Krishnarao
Pandurang Barve V/s.Balvant Keshav Patil (1925)27
Bom.L.R. 678; iii) Union of India V/s. S.B. Singh AIR
1988 ALL 225; iv) Topanmal Chhotamal V/s.
Kundomal Gangaram and Ors.AIR 1960 SC 388; v)
Jai Narain Ram Lundia V/s. Kedar Nath Khetan and
AIR 1956 SC 359.
that the executory court cannot go beyond the decree.
4) The suit was decreed and the following order was passed on
16/04/2018:
1) The suit stands decreed
2) The defendant No.1,2 and 5 shall
deliver possession to the plaintiffs
and defendant No.3 and 4 within
three months from the date of order.
3) The plaintiffs and defendant No. 3
and 4 shall execute receipt of
possession in favour of the defendant
No. 1,2 and 5 after receipt of
possession.
4) The plaintiffs shall bear costs of the
suit.”
5) The JD has filed the copy of judgment. Advocate for JD has drawn
my attention to page no.12 para 11(k) which reads as: “I have gone through
written arguments. There is no need to reproduce it. On the basis of share
certificate, neither ownership is vested in the plaintiffs nor title or ownership or
right or interest of the defendant No.3 and 4 is divested. Alongwith the plaintiffs,
the defendant No.3 and 4 are having right, title and interest in the property which
was received from the erstwhile tenant Mr. Edwards, which is marked by word 'X'
on the plan Ex.D. This issue is required to be answered accordingly that the
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plaintiffs and the defendant No.3 and 4 are having right, title and interest in the
portion marked 'X' on the plan Ex.D alongwith open space. The plaintiffs and the
defendant No.3 and 4 are owners of the “Rodricks House” and the portion marked
'X'. Thus, issue No.1 is answered in the affirmative.”
6) Advocate for JD has also drawn my attention to para 6 of judgment
issue No.1: “ Whether the plaintiffs prove their title to the portion of the cottage
on the ground floor shaded in yellow and marked “X” on the plan (Ex.D) to the
plaint and situated at 108, St.Dominic Road, Bandra (W), Mumbai 400050 ?” .
Its finding is in the affirmative. Therefore defendant No.3and 4 are necessary to
be present at the time of handing over possession and execute the receipt.
7) On the other hand advocate for plaintiff has drawn my attention to
para 14: “ the plaintiffs are entitled to declaration that they and the defendant
Nos. 3 and 4 are having right, title and interest in the “Rodricks House”. The
plaintiffs are entitled to possession for and on behalf of the defendant No.3 and 4
and they are entitled to retain it till partition of the “Rodricks House” by order
and decree of the Court or registered instrument between them. The plaintiffs are
entitled to injunction as there is no evidence forthcoming. Thus, I answer issue
No.4 in the affirmative.”
8) Issue No.4 that whether the plaintiffs are entitled to declaration,
possession and injunction as prayed for? in para 6 of the judgment finding is in
the affirmative.
9) The above operative part is to be seen with the judgment in suit
no.6298/04 of which the execution is filed by the DH. The JD is not denying to
hand over possession but on condition that as per the operative part of the
decree the defendant No.3 and 4 are necessary.
10) At this stage advocate for DH stated that the notice is not issued to
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JD No.3 and 4. Unless notice is issued to the JD No.3 and 4, further order
cannot be passed. Hence, direction is given to DH to take steps to secure
presence of JD No.3 and 4.
(S.S. NAGUR)
ADHOC JUDGE
C.R. NO.13
Dictated on : 04.12.2019.
Transcribed on :18.12.2019.
Signed on :18.12.2019.
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
18.12.2019 & 4.48 p.m. : Mrs. Shobha Ashok Shekade
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 04/12/2019
Order
Judgment/Order signed by the P.O. on : 18/12/2019
Judgment/Order uploaded on : 18/12/2019
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