Final Order 1

Order Details: Chamber summons
Pdf Text: CNR NO. :MHCC01-005840-2019. .1. CH/S No.1079/2019 in
Execution Application No. 372/2011
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
CHAMBER SUMMONS NO. 1079 OF 2019.
IN
EXECUTION APPLICATION NO. 372 OF 2011.
IN
L.C. SUIT NO. 2199 OF 1994.
Michael Gabriel. …....…..............……... … DECREE HOLDER.
V/s.
MCGM+3. ……………….…………....... … JUDGMENT DEBTORS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 14th March, 2023.
APPEARANCES :
Ms. Sonam Singh, Ld. Advocate for the Decree Holder.
Mr. Shankar Parab, Ld. Advocate for Judgment Debtor No. 1.
Mr. Rahul Bhosale,Ld. Advocate for Judgment Debtor Nos.2 and 3.
None present for Judgment Debtor No. 4 is absent.
*******
01. The Decree Holder ('the D.H.') has taken out the Chamber
Summons (for short the Ch/s), for amendment in execution application.
Perused the Ch/s., his accompanying affidavit and reply filed by all the
Judgment Debtors ('the J.D.'). Heard the advocates for the D.H. and J.D.
No.1. J.D. Nos. 2 and 3 did not prefer to file submissions on this Ch/s..
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the proposed amendment is
necessary for effective execution of the
Decree ?............................................…. .....Yes.
(ii). What Order ? .............…....................... …. As per final Order.
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CNR NO. :MHCC01-005840-2019. .2. CH/S No.1079/2019 in
Execution Application No. 372/2011
-: REASONS FOR THE FINDINGS :-
AS TO POINT NO.1 :
03. By this Ch/s., the D.H. contended that in inadvertently, he
failed to mention in the prayer clause that the decree in terms of prayer
clause (a) and (b) of the plaint is to be executed after following the due
process of law, as mentioned in the judgment and Order passed on dtd.
21.01.2006. As such, the execution application needs to be corrected. It
would not cause any harm to the other side. J.D. No.1 denied this Ch/s.
on the counts that it was a deliberate mistake of the D.H. and this Ch/s.
is filed at belatedly. J.D. Nos. 2 and 3 objected this Ch/s. as the decree is
obtained by fraud and it is wrongly instituted for the execution. There is
no provision for amendment in the execution application.
04. Having considered the rival submissions, at the outset, it is
notable that bare perusal of the execution application leaves no doubt
to infer that the Operative part, referred to in Column ‘H’, is not tallied
with the Order of the judgment and decree, in L.C. Suit No. 2199/1994.
By the said judgment and decree, the suit is decreed in terms of prayer
Clause (a) and (b) of the plaint “by following the due process of law”.
However, in this execution application, the D.H. referred something else
in Column ‘H’ and now, he wants to amend, rather say 'correct' this part.
This execution application is filed in 2011 and this Ch/s. is preferred in
2019. Considering nature of the proposed corrections, it can be inferred
that as they were patent and visible, they could have made easily much
earlier. Such mistake was apparent on the face of record. However, still
the fact remained that till date, there has been no 'substantial' progress
in this proceeding. Moreover, needless to say that this Court can't travel
beyond the judgment and decree, passed in this matter and therefore, it
would be always better to correct the execution proceeding according to
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CNR NO. :MHCC01-005840-2019. .3. CH/S No.1079/2019 in
Execution Application No. 372/2011
this decree. It would be also assist this Court to execute the decree in its
true spirit. However, it can't be lost sight of that there are latches on the
part of D.H. and therefore, while allowing this Ch/s., it would be just to
impose costs upon him to have further delayed this proceeding. Hence, I
answered point No.1 in the affirmative and to answer point No. 2, I pass
the following Order :
-: O R D E R :-
(i). Chamber Summons No. 1079/2019 is made absolute
in terms of prayer Clause (a) only, subject to payment of
costs of Rs. 3,000/-(Rs. Three Thousand) in favour of
the DLSA, Mumbai, positively till the next date.
(ii). On the payment of costs, the Decree Holder is directed
to carry out the proposed amendment /correction in the
Execution Application, within two weeks, and to file copy
of amended Execution Application simultaneously.
(iii). The parties to expedite the matter.
(iv). Chamber Summons No. 1079/2019, accordingly, stands
disposed of.
{A.G. Santani}
Mumbai. Ad-hoc Judge,
Dated : 14.03.2023. City Civil Court, Mumbai.
Dictated on : 14.03.2023.
Transcribed on : 15.03.2023.
Checked and Signed on : 16.03.2023.
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CNR NO. :MHCC01-005840-2019. .4. CH/S No.1079/2019 in
Execution Application No. 372/2011
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
18.03.2023. at 2.58 p.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 14.03.2023.
Judgment/Order signed by P.O. on 16.03.2023.
Judgment/Order uploaded on 18.03.2023.
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