Interim Order 1

Order Details: Order below exhibit
Pdf Text: Order Below Exh.1 E. A. No.100/2018
MHCC010052872018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
ORDER BELOW EXHIBIT 1
IN
EXECUTION APPLICATION NO.100 OF 2018
(CNR NO. MHCC010052872018)
Shri. Kesari Janardan Foka and Ors. … D. H./Plaintiffs
Versus
Shri. Anant Janardan Foka and Ors. … J. D./Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 21.10.2024
Appearances:-
Adv. Shivani Kunder for Decree Holder/Plaintiffs.
None for Judgment Debtors/Defendants.
ORDER
(Dictated and pronounced in open Court)
This Execution Application is taken out for execution of
the final decree in Suit No.8565/2002 dated 12th December, 2017
and which came to be registered with the Office of the Sub
Registrar, Andheri - 1. The stamp duty as per rules is also paid by
the decree holders to the Collector of Stamps, Andheri on 15th
-- 1 of 6 --
Order Below Exh.1 2 E. A. No.100/2018
November, 2017 and endorsement to that effect is put in the final
decree.
2. During pendency of this Execution Application,
obstruction was raised by one Devdas Anant Foka by taking out
Notice of Motion No.3416/2018. My Ld. Predecessor upon hearing
both the sides and on merits, has dismissed that Notice of Motion
on 9th February, 2024. There is no appeal intimation against that
order passed by my Ld. Predecessor. Said obstructionist Devdas
was present before the Court on 17.08.2024, but he did not make
any statement that he has challenged order passed by my Ld.
Predecessor in Notice of Motion No.3416/2018.
3. The report was called from Execution Department, as if
there is an appeal intimation against the final decree in Suit
No.8565/2002. Assistant Superintendent of Execution Department
remained present before the Court and made submission that
while issuing possession warrant to the Office of Sheriff, they used
to verify from the Board Department about appeal intimation, if
any.
4. The Decree Holder No.2 and his Advocate Shivani
Kunder have filed Pursis at (Exh.4) stating that they did not
receive any appeal intimation against the final decree in Suit
No.8565/2002.
-- 2 of 6 --
Order Below Exh.1 3 E. A. No.100/2018
5. Upon perusal of record, it is also seen that the final
decree which is passed by my Ld. Predecessor as mentioned above
and after its registration with the Office of Sub Registrar, Andheri -
1, its effect is given to the revenue record of the Suit property i.e.
City Survey No.560/1 at Andheri. The xerox copies of Index-II and
Property Card are placed on record by the Decree Holders along
with Pursis at (Exh.3).
6. Decree is for partition and to give separate possession
of his 1/6th share to the Decree Holder in the Suit premises i. e.
City Survey Nos. 559 and 560/1 situate at Versova, Taluka
Andheri. My Ld. Predecessor appointed Mr. H. G. Samant, an
Architecture/Court Commissioner/High Court Valuer to carry out
the inspection of the Suit premises and to suggest to this Court as
to how the Suit premises can be partitioned and how separate
possession of his 1/6th share can be given to the Decree Holder.
Accordingly, he visited the Suit premises and has submitted his
inspection report which is annexed along with decree.
7. Upon perusal of this report, it is seen that he has
submitted and recorded his findings as under -
“As the total area (1/6th) to be allotted to the plaintiffs is 304 Sq.
Feet, the total of front 3 rooms of Suit premises C. S. No.560/1
comes to 243 Sq. Feet, hence in my opinion as the structures
cannot be modified, the exact area cannot be derived. Therefore, I
suggest that the Dev Ghar Room - 3 may be shifted to the back side
-- 3 of 6 --
Order Below Exh.1 4 E. A. No.100/2018
of Room No.4 which is empty and not in use so that every family
member can use the same and the Dev Ghar Room - 3 area along
with front 2 rooms - 1 and 2 can be allotted to the plaintiffs, the
area of which works out to 243 Sq. Feet though it is lesser area
than 1/6th share of the entire Suit premises.”
8. The Decree Holder and his Adv. Shivani Kunder made
submission during the course of arguments that they have
accepted report of the Court Commissioner H. G. Samant and
Associates and Decree Holder is ready to accept the area of 243 Sq.
Feet, though it comes out to be the area less than his 1/6th share in
the entire Suit premises.
9. In view of my above said discussion and that there is
no appeal intimation against the final decree drawn in Suit
No.8565/2002, the possession warrant is required to be issued to
handover the possession of his separate 1/6th share in the Suit
premises to the legal heirs of deceased decree holder i.e. Decree
Holders No.1-A and 2, as suggested by the Court Commissioner H.
G. Samant and Associates in their report. Hence the following
order: -
ORDER
Issue possession warrant as per Order 21 Rule 35 of the Code of
Civil Procedure, to hand over separate possession of their 1/6th
share in the Suit premises to the Decree Holders i.e. Rooms No.1, 2
and 3 admeasuring total carpet area of 243 Sq. Feet, situate at
-- 4 of 6 --
Order Below Exh.1 5 E. A. No.100/2018
Versova, Taluka Andheri in City Survey No.560/01.
DATE: 21.10.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 17.10.2024
Transcribed on : 18.10.2024 and 19.10.2024
Checked on : 21.10.2024
Signed on : 21.10.2024
-- 5 of 6 --
Order Below Exh.1 6 E. A. No.100/2018
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 21.10.2024, AT 06.06 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 : 21.10.2024
Judgment/order signed by the P. O.
on : 21.10.2024
Judgment/order uploaded on : 21.10.2024
-- 6 of 6 --