Interim Order 2

Order Details: Order below exhibit
Pdf Text: Further O. B. Exh.1 E. A. No.100/2018
MHCC010052872018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
FURTHER ORDER BELOW EXHIBIT 1
IN
EXECUTION APPLICATION NO.100 OF 2018
(CNR NO. MHCC010052872018)
Shri. Kesari Janardan Foka and Ors. … Decree Holders/
Plaintiffs
Versus
Shri. Anant Janardan Foka and Ors. … Judgment Debtors/
Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 05.02.2025
Appearances:-
Adv. Shivani Kunder for Decree Holders/Plaintiffs.
Adv. Mr. Rupesh Lanjekar for obstructionist.
ORDER
(Dictated and pronounced in open Court)
The Decree Holders have filed an application at
(Exh.8) for police protection.
2. Heard their Adv. Shivani Kunder. She submitted that,
the Possession Warrant was already issued by this Court as per
Order 21 Rule 35 of the Code of Civil Procedure. But the
obstructionist Devdas Foka raised obstruction and therefore,
-- 1 of 7 --
Further O. B. Exh.1 2 E. A. No.100/2018
possession could not be handed over to the Decree Holders by the
Bailiff. The Report is on record. Therefore she prayed that, police
protection may be granted to the Decree Holders for execution of
the Decree in handing over possession of the Suit premises to
them.
3. Obstructionist resisted the application by filing say at
(Exh.9). It is contended that, an application under Order 21 Rule
97 of the Code of Civil Procedure was already filed by the Decree
Holders. But they have not pressed that application and
accordingly it came to be filed on 03.02.2024. Therefore, unless
the Decree Holders file application under Order 21 Rule 97 and it
is decided on merits, they cannot proceed further. Because
obstructionist is the stranger to the Decree and he has no concern
with the Suit property. The police protection also cannot be
granted to the Decree Holders unless application under Order 21
Rule 97 of the Code of Civil Procedure is filed and decided on
merits.
4. In support obstructionist relied upon the case of
“Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and Another,
reported in (1997) 3 Supreme Court Cases 694”, in which it is held
by Hon’ble Apex Court that, “executing Court must first adjudicate
upon objections of the appellant on merits under R.97(2) r/w
Rr.101 and 98 instead of insisting upon first handing over
possession and then moving of application by the appellant under
R.99. Words ‘any person’ in R.97(1) includes such a stranger as the
-- 2 of 7 --
Further O. B. Exh.1 3 E. A. No.100/2018
appellant. If the resistance or obstruction found to be unjust and
unwarranted then the same would be removed by the Court. Order
passed by the Court would be treated as a decree under R.101
which would be appealable. In case the stranger is already
dispossessed, his remedy would lie under R.99.”
5. In reply Adv. Shivani Kunder for Decree Holders
submitted that, an application under Order 21 Rule 97 can be
taken out by any person including obstructionist. Moreover, the
Notice of Motion was already taken out by the obstructionist
bearing Notice of Motion No.3416/2018, but it is already decided
by the Predecessor of this Court and it came to be rejected on
09.02.2024. Therefore, the obstructionist has no voice now in this
Execution Application. As per the settled position of law, police
protection can be granted to execute the Decree.
6. She invited attention of the Court towards Order
passed by Hon’ble High Court in Writ Petition No.48/2025 which
was filed by obstructionist against Order passed by this Court in
Notice of Motion No.3416/2018 and against issuance of Possession
Warrant.
7. Upon bare perusal of provisions of Order 21 Rule 97 of
the Code of Civil Procedure, it is seen that the word ‘any person’ is
used in Sub-rule (1) of Rule 97. Thus, the obstructionist also can
file an application under Order 21 Rule 97. It was already filed
him by way of Notice of Motion No. 3416/2018. But that Notice of
-- 3 of 7 --
Further O. B. Exh.1 4 E. A. No.100/2018
Motion is dismissed by my Ld. Predecessor upon hearing both the
sides.
8. Moreover, it is also the matter of record that the
obstructionist is not the stranger to the Decree. But he is one of the
legal heirs of the party defendant to the original Suit. He is the son
of Judgment Debtor No.1 and therefore, Hon’ble Bombay High
Court in Writ Petition No.48/2025 has held that he being son of
the Judgment Debtor No.1, he is bound by the Decree. He has also
filed independent Suit seeking Declaration that the Decree in
question is not binding upon him. Therefore, when obstruction
proceedings taken out by the petitioner under Order 21 Rule 97 of
the Code of Civil Procedure by way of Notice of Motion
No.3416/2018 has already been rejected by this Court, the Order
passed by this Court regarding issuance of Possession Warrant
under Order 21 Rule 35 of the Code of Civil Procedure was upheld
by Hon’ble Bombay High Court and the Writ Petition came to be
dismissed.
9. It is also important to note that, on 18.01.2025
obstructionist and his Adv. Mr. Rupesh Lanjekar were present
before the Court and they filed an application at (Exh.11) with the
prayer to grant time to them to remove their belongings in the Suit
premises and also on the ground that his old aged father was
admitted in Cooper Hospital for surgery. Upon hearing both the
sides, 8 days time was granted to obstructionist till 27.01.2025.
But nobody appeared on his behalf on that day. The next date was
-- 4 of 7 --
Further O. B. Exh.1 5 E. A. No.100/2018
fixed on 01.02.2025. On that date also nobody appeared on his
behalf. Therefore, arguments of Adv. Shivani Kunder were heard
on application at (Exh.8) and it is fixed for Orders today.
10. The Law laid down by Hon’ble Apex Court in the cited
case “Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and
Another” is not helpful to obstructionist as he is not stranger to the
Decree as he happens to be a son Judgment Debtor No.1.
11. It is the settled position of law that this Court has
inherent power under Section 151 of the Code of Civil Procedure
to grant police aid for execution of Decree and to meet the ends of
justice. As such, application at (Exh.8) deserves to be allowed and
Possession Warrant is required to be reissued as per Order 21 Rule
35 of the Code of Civil Procedure. Hence, the following order.
ORDER
1. Application at (Exh.8) is allowed.
2. Reissue 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 Versova, Taluka Andheri In City
Survey N.560/01.
3. Police protection is granted to the Decree Holders for
recovery of possession in execution of Possession Warrant as
ordered above. The Decree Holders shall approach the local
-- 5 of 7 --
Further O. B. Exh.1 6 E. A. No.100/2018
Police Station within whose jurisdiction the Suit premises are
situate. They shall deposit the necessary charges of the police
staff required by them for execution of Possession Warrant,
with the concerned Police Station and upon depositing
necessary charges, police protection be provided to them.
4. Inform concerned Police Station accordingly.
5. Accordingly, application at (Exh.8) stands disposed off.
DATE :- 05.02.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 04.02.2025
Transcribed on : 04.02.2025
Checked on : 05.02.2025
Signed on : 05.02.2025
-- 6 of 7 --
Further O. B. Exh.1 7 E. A. No.100/2018
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 05.02.2025, AT 02.54 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 : 05.02.2025
Judgment/order signed by the P. O.
on : 05.02.2025
Judgment/order uploaded on : 05.02.2025
-- 7 of 7 --