Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1257 OF 2018
CNR MHCC010040242018
IN
MISC.APPLICATION NO. 94 OF 2008
IN
S.C.SUIT NO. 8166 OF 1992
CNR MHCC010000411992
Mr. Ashok Kashinath Patil )....Applicant
Ramakant Kashinath Patil )......Plaintiff
V/s.
1. Mr. Ashok Kashinath Patil & Ors. )...Defendants.
CORAM : HIS HONOUR JUDGE
SHRI. KISHORE M.JAISWAL
(C.R. NO.02)
DATE : 30/06/2018.
HSA Advocates for the defendant no.1.
Plaintiff present.
ORAL ORDER
This notice of motion is taken out by original defendant
no.1 Mr. Ashok Patil ( in Suit no. 8166 /92) for setting aside the order
dated 14th November, 2011 passed in Misc. Application no. 94 of 2008.
This notice of motion is supported by an affidavit being executed by
original defendant no.1. Today, the plaintiff Ramakant Patil/ Applicant
of Misc. Application no. 94/08 Rashmi Patil, defendant no.1 Ashok
Patil are present before the Court. The plaintiff has given no objection
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for allowing this notice of motion. At this stage, it would be apposite to
refer the order dated 14th November, 2011 which reproduced as
under :
“The Misc. Application No. 94/2008 for final decree stands
dismissed for default. Matter be sent to Record
Department”.
Upon the carefully going through the record and the said
order, it is very clear that the Misc. application no. 94/08 is not decided
on merits and was dismissed in default. It is an admitted fact that in
the main suit no. 8166/92 the preliminary decree was passed on
8/3/2001. Thereafter the case was proceeded for taking steps so that
the final decree could be passed. I have carefully gone through the
roznama for the period from 2001 till 2011. It shows that several steps
from time to time by appointing Court Commissioner was taken. For
some period of time, even Court Receiver was appointed and lateron
he was discharged. The learned advocate appearing on behalf of the
original defendant no.1 submitted that the matter is likely to be settled
between the parties. Even otherwise, if the contents of Misc.
application no. 94/08 is seen then the parties to the suit were about to
file the Consent Terms. The original suit was for partition and even the
preliminary decree was passed hence in my opinion, it would be in the
interest of justice to restore the Misc. application no. 94 /08. However
as the matter is old one, in my opinion, some costs needs to be imposed
upon the parties for restoration of Misc. application no. 94 /08. Hence,
I pass the following order.
ORDER
1. Notice of motion no. 1257/18 is allowed and made
absolute in terms of prayer clause (a) subject to the
conditions that the applicant shall pay the costs of
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Rs.2000/ to the District Legal Services Authority,
Mumbai within a period of two weeks from today.
2. After payment of costs, Misc. application no. 94/08 be
restored to its original position.
3. Notice of motion is disposed of accordingly.
(Kishore M. Jaiswal )
Addl. Sessions Judge,
City Civil & Sessions Court,
Greater Mumbai.
Date:30/06/2018.
Dictated on : 30/06/2018.
Transcribed on : 30/06/2018.
Signed on :
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“Certified to be True And Correct copy of the Original.
Signed Judgment/Order.”
Upload Date 09.07.2018
Time at 4.00p.m.
Name of Stenographer
(Mrs. V.V.Mhatre)
Name of the Judge (With Court
room No.)
H.H.J Shri Kishore M. Jaiswal
(C.R. No.02)
Date of Pronouncement of
JUDGMENT / ORDER
30/06/2018
JUDGMENT / ORDER signed by
P.O.on
30/06/2018
JUDGMENT / ORDER uploaded on 09/07/2018
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