Final Order 2

Order Details: Order below exhibit
Pdf Text: 1 O.B.Exh.4 in Suit 16432019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
ORDER BELOW EXH.4
IN
L.C.SUIT NO.1643 OF 2019
Mr. Victor Sebastian D'souza & Ors.]...Plaintiffs.
Versus
Williams Marshall D'mello ]
& Ors. ]... Defendants.
CORAM : HIS HONOUR JUDGE
SHRI A.N. MARE
(C.R. No.11)
DATE : 2nd August, 2019.
Plaintiff's present.
Mr. Nilesh Pandey, Advocate for plaintiff.
Mr. Giri, Advocate for defendant/M.C.G.M.
O R D E R
1. By this application the plaintiffs have sought to withdraw the
present suit with liberty to file fresh suit on the ground that
present suit was filed during the pendency of Notice of Motion
filed under Order 21 Rule 97 of the Civil Procedure Code in an
Execution proceeding. The relief stated in Decree was not granted
by the Executing Court and therefore, the plaintiffs had
approached the Hon'ble Bombay High Court. The Hon'ble Bombay
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2 O.B.Exh.4 in Suit 16432019
High Court disposed of the Appeal From Order by granting liberty
to the plaintiffs to adopt the appropriate proceedings and remedies
in law to challenge the decree and the Notice issued under Section
488 of the MMC Act. Therefore, the plaintiffs had filed present
suit. The details so also the comprehensive information relating
to the subject matter of the suit could not be placed before this
Court in present suit without which the appropriate relief cannot
be claimed from. The Notice of Motion in Execution proceeding is
also withdraw with liberty to file appropriate proceedings. In such
circumstances, the plaintiffs have requested to allow them to
withdraw the suit with liberty to file fresh suit.
2. Application is opposed by the defendant on the ground that
plaintiff has not made out any ground to grant liberty as sought.
3. Perused. Heard.
4. It is an admitted fact that during the pendency of Notice of
Motion filed by the plaintiffs in Execution proceedings, present suit
came to be filed seeking a declaration that the decree passed in
Suit No.4705 of 1998 is null and void and not binding on the
plaintiffs. The plaintiffs had adopted two proceedings i.e. Notice
of Motion as well as present suit seeking adjudication of their
rights. The Notice of Motion now stands withdrawn with liberty to
file fresh proceedings. In such circumstances, considering the fact
that the plaintiffs have not brought on record all the grounds to
challenge decree in Suit No.4705 of 1998, the plaintiff can very
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3 O.B.Exh.4 in Suit 16432019
well allowed to withdraw the present suit with liberty to file fresh
suit. Hence the order:
ORDER
1. Application Exh.4 is allowed.
2. Plaintiffs are allowed to withdraw present suit with liberty to
file fresh suit.
3. Costs in cause.
Sd/
(A.N. MARE)
Judge,
02/08/2019 City Civil Court, Mumbai.
Dictated On : 02.08.2019
Transcribed on : 06.08.2019
HHJ Signed on : 08.08.2019
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4 O.B.Exh.4 in Suit 16432019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
08.08.2019 03.00 p.m. V.U. Pawar (H.G.)
Name of the Judge (With Court
Room No.)
HHJ SHRI A.N. MARE (CR 11)
Date of Pronouncement of
JUDGEMENT /ORDER
02.08.2019
JUDGEMENT /ORDER signed by
P.O. on
08.08.2019
JUDGEMENT /ORDER uploaded on 08.08.2019
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