Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1139 OF 2019
CNR NO.MHCCO10063422019
IN
CHAMBER SUMMONS NO.1183 OF 2011
IN
EXECUTION APPLICATION NO.319 OF 2011
IN
REGULAR CIVIL SUIT NO.693 OF 2007
Smt.Laxmi Lal Aswani ..Plaintiff
(Decree holder)
V/s
M/s.Gigatech Private Limited ..Defendant
And
Smt.Archana SharmaKachwaha ..Applicant
Decree holder in person
Ld. advocate Swati Sharma for the applicant.
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 02/11/2019
ORAL ORDER
1. This Chamber Summons has been tendered by the
applicant to bring the legal heirs of plaintiff/decree
holders in the Chamber summons whose names are
mentioned in scheduleI.
2. Heard.
3. Ld. Counsel for the applicant submitted that
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applicant has filed the Chamber Summons
no.1183/2011 to set aside warrant of attachment
dated 04/05/2011 so far it relates to flat no.G/101,
1st floor, Sameer CHSL, near Varsova Bus Depot,
Seven Bunglow, Andheri(W), Mumbai 400 053. The
original decree holder Smt. Laxmi Lal Aswani expired
on 08/01/2017 and legal heirs of deceased filed
chamber summons no.319/2011 to bring their names
on record in place of the deceased. The said chamber
summons was allowed and the persons (Lal Nathirlal
Aswani, Dilip Lal Aswani, Leelam Lal Aswani and
Meena Mohan Valecha) are brought on record. The
Court by order dated 21/02/2019 directed the
applicant to take necessary steps to bring the legal
heirs and representatives on record in the Chamber
Summons No.1183 of 2011.
4. The decree holder opposed the present chamber
summons. It is the contention of the decree holder
that the chamber summons is brought for bringing
the legal heirs of late Smt. Laxmi Lal Aswani, which
itself is not tenable. The present chamber summons
is not maintainable in law and facts. The present
chamber summons for bringing the legal heirs on
record in the original chamber summons no.1183 of
2011, which is being proceeded and contested as a
suit. Hence, the provisions of Rule 3 of Order XXII of
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the Civil Procedure Code are not applicable. The
decree holder died on 08/01/2017, to the knowledge
of the applicant. Hence, on 09/04/2017 the
proceedings i.e. Chamber summons no.1183 of 2011
have already been abated. In view of Rule 4(3) of the
order 22 of the Civil Procedure Code this Chamber
summons was not preferred within 90 days from the
date of decree holders The chamber summons is
filed after 813 days and therefore prayed for
dismissal of the chamber summons.
5. The decree holder has filed following judgments:
AIR 1964 SC 215 Union of India V/s
Ram Charan (deceased)
through Lrs Of Hon'ble
Supreme
Court
AIR 1983 SC 676 Madan Naik(dead by Lrs)
and others V/s Mst.Hansubala
Devi Of Hon'ble
Supreme
Court
2011(4) Mh.L.J. 104 Lanka Venkateswarla (dead) of Hon'ble
by Lrs V/s State of U.P. Supreme
Court
2011(3) All MR 443 Union of India and ors of Hon'ble
V/s Nripen Sarma Supreme
Court
AIR 1981 SC 1921 State of Gujrat V/s of Hon'ble
Sayed Mohd. Baquir EL Supreme
Edross Court
1998(3) Mh.L.J.618 Jayalaxmi Janardhan of Hon'ble
Walawalkar and others Supreme
V/s Lilachand Laxmichand Court
Kapasi and others
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2002(3) Mh.L.J.507 Annabai Devram Kini
and others V/s Hon'ble
Mithilal Daisangar Supreme
Singh and others Court
2010(6) ALL MR 391 Rallis India Ltd
V/s HMP Engineers Hon'ble
Ltd and others Bombay
High
Court
2009(5) ALL MR 214 Pramod Jamwal Hon'ble
V/s Bank of Bombay
Maharashtra High
Court
AIR 1976, GOA,
DAMAN AND DIU Sadassiva Rauji of Hon'ble
Gaitonde and and Bombay
others V/s High
Jose J.Franceses Court
(Panaji)
AIR 2003 A.P. 486 Nehra Chits (P) Ltd Hon'ble
V/s Ramachandra Reddy Andhra
and others
Pradesh
AIR 1982 KANT.191 Doddappa Hon'ble
Maritammappa Basapt Karnataka
and anr V/s Erappa High
Court
AIR 1979 ORISSA
171 Bhuneheswari Bewa Hon'ble
and others V/s State Orissa
of Orissa and another High
Court
AIR 2000 ALLAHABAD
253 Jatav Panchayat Hon'ble
Committee and Allahabad
another V/s High
VIIth Additional Court
District Judge,
Etawah and others
AIR 1982 M.P.8 Nanda and others Hon'ble
V/s Lachhman and others M.P.
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High
Court
AIR 1992 SC 492 Mahant Niranjan Hon'ble
Dass V/s Shiromani Gurudwara Supreme
Prabandhak Committee Court
2001(3) ALL MR Ulhas Vasudeo Falari of Hon'ble
210 and others V/s Bombay
Anandibai Venkatesh Sawant High
and others Court,
(Panaji)
6. Most of the judgments are on the issue that
abatement of the proceedings takes place on its own
force by passage of time and no specific order is
required for abatement. The judgments are on the
issue that Court cannot use the discretionary powers.
The delay unless sufficient cause is shown cannot be
condoned. In execution the judgment debtor cannot
compel to give the names of others heirs and assets
of the judgment debtor. The applicant submitted that
she is not party to the suit. The chamber summons
no.1183 of 2011 filed by the applicant for setting
aside the warrant of attachment. Most of the
judgments are pertaining to the issue of abatement in
the suit. As per Rule 12 of O.22 of the CPC, Rules 3,4
and 8 of Order 22 of CPC are not applicable to
execution proceedings. Rule 4 of O.22 of CPC
envisages abatement of the proceedings and the
same is not applicable to the execution proceedings.
Therefore, the stand that the proceedings in chamber
summons is abated does not hold good. The original
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chamber summons was filed in the year 2011. The
strict procedure of bringing the legal heirs and
representatives on record would not be applicable in
the execution proceedings. Therefore, the technical
objection taken by the decree holder is not
maintainable and hence this chamber summons
no.1139/2019 needs consideration for safeguarding
the record. Hence, it is expedient to pass following
order:
ORDER
1. Ch/s No.1139/2019 is made absolute in
terms of prayer clause (a) and (b) subject to cost
of Rs.5,000/ paid to be Decree Holder within a
period of four weeks from today.
2. The payment of cost is subject precedent.
3. On payment of cost applicant to carry out
necessary amendment in Ch/s No.1183/2011
within a period of seven days.
02/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 02/11/2019
Transcribed on : 23/11/2019
Signed on : 13/12/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/12/19 at 12.40 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
02/11/2019
Judgment and order signed by P.O. 13/12/2019
Judgment/order uploaded on 13/12/2019
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