Final Order 1

Order Details: Other
Pdf Text: 1 EA 133/19(Suit 1819/18)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
EXECUTION APPLICATION NO.133 OF 2019
(CNR No.MHCC010043092019)
IN
S.C. SUIT NO.1819/2018
Mr. Gurdip Chass s/o. Dharam Singh Chass ..Plaintiff
V/s.
1. Mr. Tejinder Singh s/o. Gurdip Chass
2. Mrs. Simmie Chass w/o. Tejinder Singh. ..Defendants
Appearance :
Ld. Adv. Mr. Ashok Saraogi for plaintiff/DH.
Ld. Adv. Mr. Yogendra M. Kanchan for defendants/JD.
CORAM : HHJ Shri V.V. Vidwans
C. R. No.03
DATE : 24.1.2020.
ORDER BELOW EXH.1
1. This is an Execution Application filed by decree holder for
issuing notice to the judgment debtors nos.1 and 2 under Order XXI,
Rule 22 of CPC to show cause as to why the consent decree should not
be executed. The decree holder has also sought relief of injunction
against the judgment debtors from disturbing peaceful possession of
decree holder over the suit property and /or to remove the judgment
debtors no.1 and 2 and their belongings from the suit property i.e. 74,
Mysore Colony, off Mahul Road, Chembur, Mumbai400074. The
decree holder has also sought relief against judgment debtors that in
case of resistance, the judgment debtors may be detained in civil prison
under Order XXI Rule 32(5) r/w. Sec. 55 of CPC for disobeying the
order of the court.
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2. Execution Application is supported by an affidavit of decree
holder Mr. Gurdip Chass and documents filed on record, which consist
of certified copy of consent decree in Suit No.1819/2009 dated
20.1.2010.
3. Judgment debtors no.1 and 2 have appeared before the
court and resisted the execution proceedings taken out by the
plaintiff/DHR by submitting affidavit in reply of judgment debtor no.1
Tejinder Singh Chass, along with documents vide Exhs.'A' to 'I'
respectively.
4. I have heard Ld. Counsels for judgment debtors and decree
holder on the objections raised by judgment debtors as per affidavit in
reply.
5. After hearing Ld. Counsels for both sides and objections
taken by judgment debtors, following points arose for determination
and I have recorded my findings with reasons as under :
POINTS :
1. Whether consent terms sought to be executed by decree
holder in the present proceedings are executable ?
2. Whether the objection taken by judgment debtors that
the execution application is seeking relief beyond the
decree, is maintainable ?
3. What order?
FINDINGS :
1. No.
2. Yes.
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3. Objection upheld.
REASONS
AS TO POINTS NO.1 AND 2 :
6. Ld. Counsel for decree holder referred to the execution
application and documents filed along with it, including terms of
compromise and consent decree passed by the court on 20.1.2010. Ld.
Counsel for the decree holder submitted that, the suit was filed for
seeking relief of declaration and injunction against the defendants and
as per consent terms filed on record the suit had been decreed as per
consent terms Exh.8 on record. In the consent terms, it was agreed by
the parties in para 2 of the consent terms that the defendant shall not
claim any right and/or in respect of any property owned by the plaintiff
hereinabove. As per record, the plaintiff's address in the suit was
mentioned as residing as – 74, Mysore Colony, Off. Mahur Road,
Chembur, Mumbai 400 074, while defendant's address was mentioned
as residing at flat no.402, 4th floor, L.J Road, Mahim(W), Mumbai.
Under the above circumstances, the execution application as framed
and filed is maintainable and the objections raised by the judgment
debtors are liable to be rejected.
7. Per contra, Ld. Counsel for the judgment debtors referred
to affidavit in reply submitted by judgment debtor no.1 and documents
filed on record. He submitted that, present execution application
proceedings is nothing but frivolous and abuse of process of law. It is
not maintainable. The reliefs sought in the execution application travel
beyond the consent terms dated 20.1.2010, entered into between the
parties.
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8. Ld. Counsel for the judgment debtor referred to paras 9
and 13 of the objections and pointed out that, the judgment debtor no.1
has never agreed to vacate the suit property, as his mother is a joint
owner of the property and father is not the sole owner of the same. It is
the case of the judgment debtor no.1 that, he is staying in the suit
property along with his old mother, wife and two children for the last
29 yrs. Therefore, he had never agreed to vacate the suit property as
per consent terms.
9. Ld. Counsel for the judgment debtor argued that, the
Counsel for the decree holder has tried to interpret the decree to the
suit as per his convenience. Therefore, an attempt on the part of decree
holder to seek execution of the consent decree is nothing but an abuse
of process of law. The application is liable to be dismissed on the above
said ground. Ld. Counsel referred to the title certificate, copy of which
his filed on record along with objections vide Ex.D dated 17.2.2005,
which shows that, the suit property is jointly owned by his father and
mother Mrs. Surinder Kaur Chass, who is not made party to the
proceedings. Ld Counsel for the judgment debtor no.1 also referred to
various legal proceedings and litigations pending before different courts
and authorities, including proceedings under SARFAESI Act, 2002; Suit
No.452/2014 and D.V. Case No.209/DV/2018 and submitted that, the
present execution application is an offshoot of the same. Ld Counsel
also referred to the order passed by Ld. 57Th Metropolitan Magistrate
Court, Kurla, Mumbai dated 20.7.2018. According to the said interim
orders, the court has protected his mother under D.V. Act and has
recorded the fact that the judgment debtors are residing in the suit
property, along with mother vide Ex.I. Under the above circumstances,
he prayed for dismissal of the execution proceedings, as not
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maintainable in law.
10. After going through the execution application, consent
decree and the objections raised by the judgment debtor no.1, I find
that, the words of para 2 of consent terms are very general and vague.
It is drafted in a negative form to the effect that, “the defendant shall not
claim any right and/or claim in respect of any property owned by the
plaintiff”. It appears that, the suit property is not exclusively owned by
the plaintiff but it is a joint property owned by the plaintiff/decree
holder along with the mother of the judgment debtor no.1 and
assuming for the sake of argument that the judgment debtor no.1 had
agreed, “not to claim any right in the suit property”, he cannot be
dispossessed from the same, if he is residing in the suit property along
with his mother. It is true that, the addresses of decree holder and
judgment debtor no.1 in the cause title of the suit were different but the
real fact appears to be different as per documents filed on record by the
judgment debtor no.1. Therefore, I am of the opinion that, the relief
sought by the decree holder in the present execution application travels
beyond the consent terms agreed by the parties. Therefore, the reliefs
as per prayer clauses (1) to (3) cannot be granted by this court in
execution of the consent decree. Points no.1 and 2 are answered
accordingly. Hence, I proceed to pass following order :
ORDER
1. Objections raised by judgment debtor no.1 in the
affidavit in reply are upheld.
2. Execution Application, as framed and filed, is
dismissed as not maintainable in law.
3. No order as to costs.
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Execution Application is disposed of and
proceedings closed.
(V.V. Vidwans)
Judge, City Civil Court,
Date : 24.1.2020 Gr. Bombay(CR 03)
Dictated on : 24.1.2020
Typed on : 24.1.2020
draft given to HHJ on : 24.1.2020
Signed on : 27.1.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :27.1.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 24.1.2020
Judgment/ order signed by P.O on 27.1.2020
Judgment/ order uploaded on 27.1.2020
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