Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1201 OF 2020
(CNR NO.MHCC010033272020)
IN
S. C. SUIT NO.1738 OF 2011
Attiappan Devendra )..Org. plaintiff (deceased)
Ramlingam Attiapan Devendra )
& Others. )..Plaintiffs
Versus
Saraswati Krishna Devendra )..Defendant
Appearances :
Ld. Adv. Shaikh Shafi Ahmed for plaintiffs.
Ld. Adv. S. K. Keswani for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 10/03/2023.
ORDER
1 This notice of motion is taken out by the legal heirs of
original plaintiff for temporary injunction, restraining the defendant
from dispossessing or interfering the possession of the legal heirs of
original plaintiff. The subject matter is described as follows :
Room/Shop No.299, Kokari Agar, Opp. Mariamma
Temple, Sion Koliwada, Mumbai 400 037, Ground +
One Area admeasuring 15½ ft. length, 7.45 ft. breadth,
9.5 ft. height and Upper floor 15½ length, by 8 ft. breadth,
by 7 ft. height;
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2 The record discloses that the defendant had filed the S. C.
Suit bearing No.705/2003 which came to be decreed on 21/10/2010
against the original plaintiff, directing to hand over the possession of
the premises bearing room No.301 situated at Kokari Agar, Kamraj
Nagar, Opp. Mariamman Temple, Sion, Koliwada, Mumbai – 37,
holding that the original plaintiff has no title to the said premises. The
original plaintiff filed instant suit for injunction against the defendant,
contending that on 04/05/2011, the bailiff alongwith defendant had
come to take forcible possession of his property bearing room No.299.
It appears from the averments of plaint that the instant suit is filed
against the judgment passed in S. C. Suit No.705/2003, having found
that the execution petition as per the decree and as per the order of
Executing Court, the bailiff is permitted to take the possession of room
No.301. The original plaintiff has prayed for temporary injunction
against the defendant in respect of the room No.299. Thus, it appears
that there is a dispute regarding the premises to which the defendant
claiming room No.301 and the original plaintiff claiming room No.299.
3 After filing the instant suit, there was an interim order in
favour of the plaintiff, however, inconsequence of the death of plaintiff,
matter was disposed off as abated. Later on his legal heirs impleaded
themselves in the place of original plaintiff vide order in notice of
motion No.2037/2017, wherein they were granted liberty to file the
notice of motion for temporary injunction. Thus, interim order came to
be discontinued. Therefore, the legal heirs of original plaintiff have
filed this notice of motion claiming that on 02/03/2020, bailiff of the
Court with some police personnel approached the suit premises saying
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that the decree has to be executed claiming suit premises room No.301,
therefore, they were constrained to file the instant notice of motion.
4 Defendant filed reply and resisted the contentions,
contending that the suit is basically filed against the judgment passed in
S. C. Suit No.705/2003. It is her contention that the plaintiffs are
wrongfully claiming the suit premises having room No.299 which is
actually room No.301 and prayed for dismissal of notice of motion.
5 Heard rival parties at length.
6 The copy of judgment in Civil S. C. Suit No.705/2003
discloses that the original plaintiff (defendant in said suit) has raised all
the contentions which are mentioned in this plaint and notice of
motion. The Court has considered the same and rejected all his
contentions. In para No.18 of the said judgment, the Court has
observed that the defendant (original plaintiff) failed to establish his
developed story that room No.301 is part and parcel of room No.299.
Thus, I am of the view that the entire contention raised by the original
plaintiffs have already been raised before the earlier suit and decided by
the concerned Court. Therefore, only option left is to file an appeal
against the finding of the Court in S. C. Suit No.705/2003 or to raise
the objections in execution proceeding under Section 47 of Code of Civil
Procedure.
7 By way of this notice of motion, it appears that the legal
heirs of plaintiff are trying to seek injunction against the order of
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Executing Court. Thus, they want to defeat the execution of the decree
in S. C. Suit No.705/2003, by way of this injunction which is not
permissible at all. They may raise objections before the Executing Court
and may establish their contention and get appropriate order in the said
execution proceeding. I am of the view that this Court cannot grant
injunction as the legal heirs of original plaintiff have efficacious remedy
available with them to raise the objection before the Executing Court,
consequently, I held that the motion is devoid of merits. Hence,
following order :
O R D E R
1. Notice of Motion No.1201/2020 in S. C. Suit
No.1738/2011, is hereby dismissed.
2. Notice of Motion is disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 10/03/2023 C.R. No.03, Gr. Mumbai
Dictated on : 10/03/2023
Transcribed on : 10/03/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
13/03/2023
at about 5.32 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 10/03/2023
Order signed by Hon'ble Judge on : 13/03/2023
Order uploaded on : 13/03/2023
at about 5.32 p.m.
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