Order 1

Order Details: Order below exhibit
Pdf Text: Order Below Exh.1 ... 1 … E.A. No.158/2019
MHCC010048402019
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
ORDER BELOW EXHIBIT 1
IN
EXECUTION APPLICATION NO.158 OF 2019
(CNR NO. MHCC010048402019)
Ashish U. Mishra
legal heir/assignee of deceased
Orig. Plaintiff i.e. Bansraj Lattaprasad
Mishra, … Decree Holder/
Plaintiff
Versus
1. Mrs. Yvonne Rose Jones
legal heir/representative of deceased
Orig. Defendant i. e. Stanley Parker
Jones
2 Office of District Collector (Mumbai
Suburban),
10th Floor, Administrative Building,
Near Chetna College, Government
Colony, Bandra (E), Mumbai - 400051. … Judgment Debtors/
Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 20.09.2024
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Appearances:-
Decree Holder/plaintiff in person.
None for Judgment Debtors/defendants.
ORDER
(Dictated and pronounced in open Court)
1. Heard Adv. Mr. Ashish Mishra who is also the Decree
Holder in this Execution Application. He submitted that this
Execution Application is taken out to execute an order passed by
the Predecessor of this Court in Miscellaneous Application
No.85/2014 in Civil Suit No.6954/1972 dated 09.10.2015. He
further submitted that to execute that order as to mesne profits,
the flat No.9 on the second floor situate in Maheshwar Ganga
C.H.S.L., Pali Naka, Mumbai - 400050 belonging to Judgment
Debtor be attached and sold out to satisfy the decree.
2. He further submitted that the original
defendant/Judgment debtor died and after his death, his legal heir
Mrs. Yvonne Rose Jones was brought on record, but she also died.
The public notice was issued in the newspaper asking to join this
Execution Application as a legal heir of deceased Stanley Parker
Jones, original Judgment debtor. But nobody has come forward
and therefore, the District Collector, Mumbai Suburban is
impleaded in this Execution Application as Judgment Debtor No.2.
He prayed for orders regarding attachment of flat No.9 as
mentioned above.
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3. After going through history of the said Execution
Application, it is seen that impugned order came to be passed on
09.10.2015. The Judgment Debtor took out Notice of Motion
No.3075/2016 to set aside that order. But it came to be dismissed
in default. Therefore, another Notice of Motion No.2886/2019 was
taken out by the Judgment Debtor to restore Notice of Motion
No.3075/2016. It came to be allowed on 13.07.2022 subject to
payment of costs of Rs.3000/- and Notice of Motion
No.3075/2016 was restored to its original file. However, the
roznama of this Execution Application dated 03.02.2024 discloses
that said Notice of Motion No.3075/2016 is disposed off by my Ld.
Predecessor for want of prosecution and it is closed. That order has
not been challenged.
4. It is also seen from the roznama that the notice was
issued to the Maheshwar Ganga C.H.S.L. asking it to produce on
record the documents regarding flat No.9 on the 2nd floor situate in
the building of the said Society. Adv. Mr. Sawant appeared for it
and sought time to produce the documents. But in spite of giving
an opportunity, he did not appear on 10.09.2024 and therefore
after hearing arguments of the Decree Holder, today the matter is
fixed for orders.
5. Though there are no title documents on record
regarding said flat No.9 situate on the 2nd floor of said building,
from the affidavit in reply filed by the Judgment Debtor to the
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notice under Order 21 Rule 22 of the Code of Civil Procedure,
nowhere it is denied that the Judgment Debtor is the owner of the
said flat. On the contrary, it is contention of the Judgment Debtor
in para No.13 of the affidavit in reply that plaintiff/decree holder
is having evil eye on the property of her deceased father wherein
she and her brother are having equal right.
6. The Decree Holder has placed on record the copy of
search report issued by the Title Investigator Sunil Nate dated
03.05.2023 wherein CTS number of said flat is mentioned as
F/653. He has also placed on record copy of the electricity bill of
the said flat which stands in the name of Yvonne Jones.
7. But as said earlier, nobody has come forward after
issuance of public notice after the death of the sole legal heir of the
Judgment Debtor. The impugned order which is to be executed
came to be passed on 09.10.2015 and for the period of about 9
years it is pending for execution. There is no appeal intimation or
stay order placed on record from the side of Judgment Debtor.
Moreover, nobody is coming forward to contest the Execution
Application after the death of the legal heir of Judgment Debtor
namely Yvonne Rose Jones.
8. Under such circumstances, in the absence of any appeal
intimation or stay, it becomes necessary for this Court to pass order
regarding attachment of said flat No.9 on the 2nd floor situate in
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Maheshwar Ganga C.H.S.L. Hence, the following order: -
ORDER
1. The legal heirs of Judgment Debtor, if any are hereby
prohibited as per Order 21 Rule 54 of the Code of Civil
Procedure, 1908 from transferring or charging flat No.9
situate on the 2nd floor of Maheshwar Ganga C.H.S.L., CTS
No.F/653, situate at Bandra, Pali Naka, Mumbai or charging
the said property in any way and all the persons from taking
any benefit from such transfer or charge.
2. The legal heirs of the Judgment Debtor, if any are required to
attend this Court on 04.11.2024 for settling the terms of the
proclamation of sale.
3. This order shall be proclaimed on the above said property
i.e. flat No.9 situate on the 2nd floor of Maheshwar Ganga
C.H.S.L., CTS No.F/653, situate at Bandra, Pali Naka,
Mumbai as per Order 21 Rule 54 (2) and copy of this order
shall be affixed on the conspicuous part of the said property
and also upon the conspicuous part of the Court house.
4. The copies of this order shall also be forwarded to the
Chairman and Secretary of the Maheshwar Ganga C.H.S.L.
and also to the District Collector, Mumbai (Suburban) with a
request that appropriate entries showing that attachment
levied on this said flat be caused to be made in the revenue
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record, city survey record of the said property.
5. Inform the Chairman, Secretary of Maheswar Ganga C.H.S.L.
and also the District Collector, Mumbai (Suburban),
Government Colony, Bandra (E) to comply said order.
DATE: 20.09.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 20.09.2024
Transcribed on : 20.09.2024
Checked on : 20.09.2024
Signed on : 20.09.2024
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 21.09.2024, AT 12.30 P. M. Mr. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.)
: SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order
:
20.09.2024
Judgment/order signed by the P. O.
on
:
20.09.2024
Judgment/order uploaded on : 21.09.2024
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