Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 14682018, in Suit no. 7427 of 2006
(High Court no. 3431 of 2006)
MHCC010046012018
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1468 OF 2018
IN
SUIT NO.7427 of 2006
IN
(HIGH COURT SUIT NO.3431OF 2006)
1. Arch Realtors Pvt. Ltd. & Anr. ... Applicants
Smt. Aisha Khatoon D/o. Late Nazeer .... Plaintiff
V/s
Khatijabai Mohd. Siddiq & Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 19th DAY OF APRIL, 2023
: Appearances:
The learned Adv. R.M Vanoo for plaintiff.
The learned Adv. Rohan Sawant a/w Adv. Meetal Savla i/b Tushar
Goradia for defendants no. 16 and 17
ORAL ORDER
Defendants no.16 and 17 have taken out present notice of
motion for modification of order dated 03rd/04th and 05th October, 2007
passed by the Hon'ble High Court in Notice of motion no.4374 /06 in
High Court suit no. 3431/2006.
2. In short, it is contention of defendants no.16 and 17 that
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the plaintiff has filed suit for declaration that she had 1/8th share, right
title and interest in the suit property and for other reliefs.
3. In the said suit, the plaintiff has taken out notice of motion
no. 4374/06 for an appointment of Court receiver and for temporary
injunction restraining the defendants no.16 and 17 from carrying any
construction or development on the suit property. While disposing of
said notice of motion, the Hon'ble High Court was pleased to pass the
following order which reproduce as follows:
"The adinterim arrangement recorded in order dated 12 th March, 2007
which is continued by further order dated 10th April, 2007 (clause no.5 of
said order) will continue to operate as interim relief. The 16th and 17th
defendants to file an affidavit in this Court within a period of twelve weeks
from today setting out the particulars of the residential flat admeasuring
approximately 600 sq.fts in the building under construction which will be
kept unalienated till disposal of the suit".
Accordingly, defendants no.16 and 17 kept residential flat
no.202 admeasuring 600 sq.fts (saleable 505 sq.fts. built up) situated at
Arch Gold Apartments, CTS No. 16, Village Poisar, S.V. Road, Kandivali
(W), Mumbai.
4. It is further contention of defendants no.16 and 17 that,
now they are ready and willing to give bank guarantee for an amount of
Rs.25 lacs to secure monetary claim of the plaintiff. They prayed to
release said flat and to pass appropriate direction by modification of the
order of the Hon'ble High Court. Hence this notice of motion.
5. The plaintiff strongly opposed the notice of motion by filing
reply on affidavit. It is contended that, this Court cannot modify the
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order of the Hon'ble Bombay High Court. It is further contended that
the order passed by the Hon'ble High Court was challenged by
defendants before the Division Bench of the Hon'ble High Court.
However, the Hon'ble High Court refuses to grant any relief to
defendant no.16 and 17. Hence, present notice of motion is liable to be
dismissed.
6. Heard both the learned advocate for respective parties at
length. Perused the record. Learned advocate for the plaintiff also
relied on the authority reported in the case of Marino Mesquita and
Ors Vs Selva Raju Nadar and Ors Air Online 2020 Bom 3115.
7. Following points arise for my determination to which I
have recorded my findings with reasons as follows:
Sr. No. Points Determination
1. Whether defendants no.16 and 17
are entitled for reliefs claim in notice
of motion.
No
2. What order? As per final order.
REASONS
As to Points no.1:
8. Here, it is to be noted that, defendants no. 16 and 17 asked
for modification of order dated 3rd /4th and 5th October 2007 passed by
the Hon'ble High Court in notice of motion no.4374/06, in suit no.
3431/2006.
9. I have gone through the authority relied on by the plaintiff
in the case of Marino (supra) wherein the Hon'ble Bombay High Court
held that, “Once superior Court has disposed of lis before it either way
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whether decree or order under appeal is set aside or modified or simply
confirmed, it is decree or order of superior court, tribunal or authority
that is final, binding and operative. Lower court cannot modify the same.
Hence denied the modification”.
10. Here it is to be seen that, defendants have agitated the
order of the Hon'ble High Court single bench, dated 3rd /4th and 5th
October, 2007 before the Division Bench of the Hon'ble High Court vide
appeal no.67/08. The Hon'ble Divisional bench of the High Court was
pleased to refuse to grant any relief while holding that, they do not
desire to disturb the order passed by the learned single judge. Now in
view of such fact when order of the Hon’ble single bench of the High
Court is confirmed by the Hon'ble Division Bench, I am of the humble
view that this Court cannot modify the said order in any manner.
Hence, notice of motion is not maintainable and needs to be rejected.
Thus, my answer to point no.1 is in negative.
As to point no.2:
11. In view of above discussion, I pass the following order:
ORDER
Notice of motion No. 1468/2018 is hereby rejected.
Notice of motion disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.19.04.2023 (C.R. No.1)
Dictated on : 19.04.2023
Transcribed on : 20.04.2023
Checked & Signed on : 21.04.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 21.04.2023 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 19.04.2023
JUDGMENT/ORDER signed by P.O. on 21.04.2023
JUDGEMENT/ORDER uploaded on 21.04.2023
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