Final Order 1

Order Details: Other
Pdf Text: 06/06/2019 CORAM : HIS HONOUR THE PRINCIPAL JUDGE
SHRI. V.G.BISHT
T.A. 106/19 Applicant in person present.
Adv. Dhanashree Chalke for respondent No.2 present.
Order below Exh.1.
Read Application. Read say at (Exh.4) of respondent No.2.
Heard both the sides.
It appears that Execution Application No.9/2019 arising
out of Summary suit No.245/2018 filed by applicant/decree
holder is pending in C.R.No.5 of Dindoshi Court. The applicant
has given the various grounds and instances for transferring the
said Execution Proceedings to some other Court whereas
respondent No.2 resisted the application by filing his say (Exh.4).
At the very outset, the applicant/decree holder appearing
in person submitted that the Presiding Officer of C.R.No.5 has
already been transferred and therefore the present application
has lost its importance. However, the applicant urged that the
successor of earlier Presiding Officer be directed to expedite the
hearing of the Execution Application No.9/2019 in the interest of
justice and u/s 151 of Civil Procedure Code.
The Learned Counsel appearing for respondents, on the
other hand, submitted that no such direction of expeditious
hearing can be given in as much as this Court is not sitting as an
Appellate Court.
On going through the record it is seen that Summary Suit
No.245/2018 came to be decided ex parte vide judgment dated
20/12/2018. Pursuant to the passing of judgment and decree, the
applicant/decree holder took out Execution Application
No.9/2019. For some or the other reasons, as mentioned in the
application, the Execution Proceeding could not make much
progress and therefore, the applicant was compelled to file the
present application.
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The present application is rendered infructuous in as much
as the Presiding Officer against whom the allegations are made in
the application has already been transferred. Now the only
question which needs to be answered is whether direction of
expeditious hearing of the said Execution Proceeding can be
given to the Presiding Officer who has succeeded the earlier
Presiding Officer.
Section 151 of the Civil Procedure Code does not confer
any powers, but only indicates that there is a power to make such
orders as may be necessary for achieving the ends of justice, and
also to prevent an abuse of the process of the Court. The Court is
not powerless to grant relief when the ends of justice and equity
so demand, because the powers vested in the Court are of a wide
scope and ambit.
In the instant case admittedly the ex parte money decree
came to passed on 20/12/2018. Immediately the Execution
Application No.9/2019 came to be moved on 16/01/2019. It
further appears that the respondent No.2 has already taken out a
Notice of Motion for the purpose of setting aside the ex parte
decree passed against him.
In view of above, no prejudice would be caused to the
respondents if the said Execution Proceeding is expedited. Rather
it would subserve the ends of the justice.
In view of above, I pass the following order:
O R D E R
Application stands disposed of as rendered infructuous.
However, Learned Judge of C.R.No.5 (Dindoshi Court) is
requested to expedite the hearing of Execution Application
No.9/2019.
C.R.No.5 be informed accordingly.
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Principal Judge,
Gr. Mumbai.
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