Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 1261/2019 in Suit No.7367/1997
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1261 OF 2019
IN
SUIT NO. 7367 OF 1997
(CNR NO. –)
Mr. Ambalal Gulabchand Jain )
Residing at )
Shop No. 21, Abhinandan Market, )
Kalbadevi Raod, Mumbai 400 002 ) …. Plaintiff
Versus
1. Mr. Ghisu Parekh )
Since deceased through his legal heir )
Mr. Bhadraj Ghisu Parekh )
Residing at )
Amantran Jewellers, Shop No. 3 )
Shivram Palace, Near Shankar Temple, )
Angre Chowk, Alibaug (Raigarh) )
2. Mr. Balkrishna Rama Thakur )
Residing at )
Parekh Jewellers, Balaji Naka, )
in front of Kalambika Devi, )
Alibaug (Raigarh) ) ….Defendants
Appearance:
Adv. Sankalan Das for applicant present.
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CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 04/07/2019
ORAL ORDER
1) The notice of motion is filed by the applicant who
are the legal heirs of defendant No. 1 to set aside the exparte
decree. The Notice of Motion is supported by Affidavit of Bhadraj
Ghisu Parekh. He on oath stated that the plaintiff was well aware
of death of defendant No. 1 and has attended funeral of
defendant No. 1 then too did not take steps to bring the legal
heirs of defendant No. 1. The execution proceeding was filed by
the plaintiff and it was served to the applicant in the Month of
August 2018. Hence prayed to set aside the decree .
2) The report of affidavit of service shows that the
notice of motion is served to the plaintiff. The plaintiff failed to
appear. Hence the notice of motion is proceeded exparte against
plaintiff.
3) Heard Adv. Sankalan Das for applicant. Perused
contents of notice of motion supported by affidavit. I have
also gone through the proceeding of summary suit No.
7367/1997.
4) The suit is filed by the plaintiff for recovery of
Rs. 1,70,585.17/ and Rs. 1,15,000/ the amount of interest.
The applicants have filed on record the death certificate of
defendant No. 1. It shows that the defendant No. 1 expired
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on 02/04/2009. The suit proceeded further. On perusal of
the record the unconditional leave was granted to the
defendant by Hon'ble High Court by order dt. 21/06/1999 in
summons for judgment No. 709/1997 in summary suit No.
2790/1997. In the order it is observed by Hon'ble High
Court that the defendants have denied their signature on the
bill. On perusal of the record the Adv. for defendant has
withdrawn the vakalatnama after issuing the notice to the
defendant No. 1. It shows that it is unclaimed by the
defendant and returned to the sender. The vakalatnama was
withdrawn in the year 2003.
5. The defendant even after grant of unconditional
leave did not file the written statement therefore after the
suit was transferred from Hon'ble High court due to increase
in pecuniary jurisdiction the Adv. for plaintiff appeared in
the court but nobody appeared for defendant No. 1 as the
vakalatnama was withdrawn. The defendant No.
1/applicants didn't have the notice of transfer of the suit in
this Court. The roznama shows that only plaintiff appeared
in the court and proceeded with the suit. The applicants
were not aware of the proceeding. The defendant No. 1
expired in the year 2009. The exparte decree is passed on
06/01/2014. the evidence of the applicant on oath states
that they came to know about the decree in the month of
August 2018 when they received the notice of Execution
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filed by the plaintiff for recovery.
6. Advocate for applicant has relied on authority
reported in Gurnam Singh(D) Thr Lrs. V/s. Gurbachan kaur
(D) [2017] 13 SCC 414 , [2017] 5 SCC (Civil Appeal) 658.
In this case the death of both the parties was delaying
hearing of second appeal. The Hon'ble High Court held that
the law on the point is well settled. On the death of a party
to the appeal, if no application is made by the party
concerned to the appeal or by legal representatives of the
deceased on whom the right to sue has devolved for
substitution of their names in place of the deceased party
within 90 days from the date of death of the party, such
appeal abates automatically on expiry of 90 days from the
date of the death of the party.
7. The facts on record shows that the defendant No.
1 expired in the year 2009. Though notice was issued to him
by his Advocate on record. He did not claim the said notice.
The defendant No. 1 was not aware of the proceeding
transferred to this court. Hence I hold that the applicants
who are the legal heirs of defendant should be given an
opportunity to contest the suit as unconditional leave on the
basis of denial of the signature of Bill of Exchange was
granted. The defendant No. 1 failed to appear in the suit
therefore the exparte decree was passed. Though the
opportunity was given and the deceased defendant No. 1
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was informed by his Advocate but he failed to appear nor an
attempt is made by him to follow up the suit before Hon'ble
High Court. Therefore the decree can be set aside only of
condition of deposit of amount of Rs. 2,00,000/ in the
court. Hence pass following order :
ORDER
1. The Notice of Motion is allowed
2. The applicants are hereby directed to
deposit the amount of Rs. 2,00,000/
(Two lakh only) within one month of the
order to be kept in Fixed deposit of
nationalised bank.
3. On deposit of the amount within the
above period the decree dt. 04/01/2014
in summary suit No. 7367/1997 is set
aside and the file is restored.
4. Accordingly notice of motion is
disposed of.
(S.S. Nagur)
Date : 04/07/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 04/07/2019
Transcribed on : 04/07/2019
Signed on : 04/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF TYPIST
15/07/2019 : 12.02 pm Mr. M. M. Patange
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 04/07/2019
Order
Judgment/Order signed by the P.O. on : 04/07/2019
Judgment/Order uploaded on : 15/07/2019
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