Date: 01-08-2019
Business: Adv. Sabina Soloman for Plaintiff present.
Adv. Minal Chandani for Obstructionist present.
Plaintiff tendered original NM No.2518/19 t.o.r.
Obstructionist is directed to get register NM.
Adv for Obstructionist undertake to get registered NM.
Adj for reply to NM No.2518/19 to 09.09.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 09-09-2019
Date: 09-09-2019
Business: Adv. S. Mathue for plaintiff
Adv. Milan Chandani for obstructionist present. She tendered original NM 3318/19.
She wants to file rejoinder to reply of plaintiff to above NM.
She also sought time to file reply to the NM of plaintiff. Time is granted.
Matter is adj for reply 18.10.2019
Next Purpose: REPLY
Next Hearing Date: 18-10-2019
Date: 18-10-2019
Business: Adv. S. Mathew for plaintiff present.
Adv. Shewtketu for obstructionist present and filed reply to NM 2518/19
Copy given to other side.
Matter adjourned for evidence of NM 2518/19 and NM 3318/19 for hearing 26.11.2019
Next Purpose: HEARING
Next Hearing Date: 26-11-2019
Date: 26-11-2019
Business: Adv.Aparna Waghale for plaintiff present.
Ex B She filed V/N. t.o.r.
He filed additional affidavit in reply to the obstructionist NM
Adv. Sagar Batavia for obstructionist present.
Adjourned for evidence to 3.01.2020
Next Purpose: HEARING
Next Hearing Date: 03-01-2020
Date: 03-01-2020
Business: Adv. Aparna Waghale for plaintiff present.
Obstructionist is directed to file evidence affidavit by next date without fail.
Adjourned for evidence to 30.01.2020 at 11.00 am
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 30-01-2020
Date: 30-01-2020
Business: Adv. Minal Chandani for obstructionist present.
She sought time to filed affidavit of evidence.
O -time is granted.
Adjourned for R/E to 29.02.2020.
LO
Adv. Aparna Waghale for DHR present.
Already adjourned to 29.02.2020
Next Purpose: RECORDING EVIDENCE
Next Hearing Date: 29-02-2020
Date: 29-02-2020
Business: Adv. Aparna Wagale for applicant is present.
Obstructionist and his advocate are absent. Inspite of sufficient opportunities, they failed to adduce evidence on notice of motion. Hence adjd for hearing on notice of motion on 01.04.2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 01-04-2020
Date: 01-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-04-2020
Date: 01-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-04-2020
Date: 01-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-04-2020
Date: 16-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 05-05-2020
Date: 05-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 27-05-2020
Date: 27-05-2020
Business: National Lockdown
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-06-2020
Date: 12-06-2020
Next Purpose: NM FOR HEARING
Next Hearing Date: 29-07-2020
Date: 29-07-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 04-09-2020
Date: 04-09-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 21-10-2020
Date: 21-10-2020
Reason For Adjournment: Adjourned due to Covid-19
Next Purpose: NM FOR HEARING
Next Hearing Date: 09-12-2020
Date: 09-12-2020
Business: Adv Swapna Rupwate for DHR present.
Matter stands Adj for NM hearing to 05/02/2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 05-02-2021
Date: 05-02-2021
Business: Adv Swapna Roopavate for DHR present.
Adv Sunila Chavan appeared for JDR/respondent/deft no. 1.
Exh C - She filed VP for JDR. t.o.r.
Exh D - She filed application for expediting the proceeding. t.o.r.
Adv Ashish Gupta for Obstructionist present.
He seeks time for hearing on NM. Granted as last chance.
Matter stands Adj for NM Hearing to 08/03/2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 08-03-2021
Date: 08-03-2021
Business: Adv. Nimay Dave for DH present.
Adv. Sunila Chavan for JD present.
Adv. Minal Chandani for obstructionist present.
On oral request of Ld. Adv. for obstructionist adjournment granted as last chance. However, if the obstructionist fails to argue on next date, further order will be passed.
Adjd to 19.03.2021 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 19-03-2021
Date: 19-03-2021
Business: Adv. Nimay Dave for DH present.
Adv. Shweta for obstructinist.
On oral request of Ld. Adv. for obstructinist adjournment granted as last chance.
Adjd. to 22.03.2021 for Hearing.
Next Purpose: HEARING
Next Hearing Date: 22-03-2021
Date: 22-03-2021
Business: Court is on leave, hence board is discharges.
Next Purpose: HEARING
Next Hearing Date: 23-03-2021
Date: 22-03-2021
Business: Court is on leave, hence board is discharges.
Next Purpose: HEARING
Next Hearing Date: 23-03-2021
Date: 22-03-2021
Business: Court is on leave, hence board is discharges.
Next Purpose: HEARING
Next Hearing Date: 23-03-2021
Date: 23-03-2021
Business: Adv. Nimay Dave for DH present.
Adv. Sunila Chavan for JD present.
Adjd to 24.03.2021 for NM hearing at 2.45 p.m.
Next Purpose: NM FOR HEARING
Next Hearing Date: 24-03-2021
Date: 24-03-2021
Business: The P.O. is on half day(second session) leave. Hence board is discharged.
Next Purpose: NM FOR HEARING
Next Hearing Date: 25-03-2021
Date: 25-03-2021
Business: Adv. Sanket Mungale for DH present.
Adv. Sunila Chavan for JD present.
Adv. Ashish for obstructionist present.
Heard arguments of Ld. Adv. for JD and DH.
Adjd to 30.03.2021 for NM hearing at 10.30 a.m.
Next Purpose: NM FOR HEARING
Next Hearing Date: 30-03-2021
Date: 30-03-2021
Business: Adv. Sanket Mungle along with Adv. Aparna Wagle for DH present.
Adv. Sunila Chavan for JD present.
Adv. Shweta for obstructionist present.
Heard argument of Ld. Adv. for obstructionist.
Adjd to 01.04.2021 for order on NM No. 3318/19.
Next Purpose: NM ORDERS
Next Hearing Date: 01-04-2021
Date: 01-04-2021
Business: Adv. Mr. Sanket Mungale a/w Adv. Ms. Aparna Wagle I/b Alliance Law for Original DH present.
Adv. Ms. Sunila Chavan for original defendant no.2/JDH present.
Adv. Ms. Shwetha Venuturupalli obstructionist present
Order on N/M No. 3318 of 2019
This is an application by Notice of Motion under Order XXI Rule 26 of the Code of Civil Procedure, 1908 by an applicant who was not party to the suit and consent terms dated 04.04.2015 in suit no.4720 of 2009. In affidavit in support of the Notice of Motion, it is contended that the applicant is nephew of Mrs. Evon Azvedo and he has been residing with her since 1998. It is further contended that Mrs. Evon was suffering from cancer and she was not in physical or mental state to understand the consent terms, the decree was obtained by making false representation of facts. The applicant prays to stay the execution on the aforesaid grounds. The decree holder has filed reply and resisted the Notice of Motion.
It is pertinent to note that suit no. 4720 of 2009 was decreed in terms of the compromise dated 04.04.2015. The applicant claims his occupancy right over the suit premises due to his close relation with Mrs. Evon defendant no.1 and his long standing occupation in the suit premises. However, he has not tendered any document to prove his independent ownership over the suit premises. He is claiming through Mrs. Evon who was signatory to the consent terms and was present in Court when verification of the consent terms was taken by the Court. In the consent decree, it was clearly stipulated that Mrs. Evon defendant no.1 was permitted to reside in the suit premises for next 2 years or till completion of sale, whichever was earlier. She had expressly under taken not to create third party rights, induct any third party into the suit premises or any part thereof or not to transfer tenancy or create fresh tenancy in the suit property. Even though, the applicant claims that he was treated as son by Mrs. Evon, in his reply dated 24.08.2017 to the letter dated 28.07.2017, he has clarified that he was not legally adopted. From the above, the applicant has failed to establish his independent legal right in respect of the suit premises. Order XXI Rule 26 of the Code of Civil Procedure, 1908 empowers the Court to stay the execution in the circumstances mentioned in the said provision and not otherwise. Mere permissive possession, though not proved, is not sufficient to culminate into the title of an immovable property. Moreover, it is not believable that though the applicant was staying with Mrs. Evon since 1998, he was not aware of the consent decree. The case of the applicant that he has independent legal right in the suit premises is not established from the documentary evidence filed by him. The consent decree is binding on the applicant, who claims to be successor of the party to the consent terms. Therefore, Notice of Motion is liable to be dismissed. Hence, Order -
ORDER
1. Notice of Motion no. 3318 of 2019 is dismissed.
2. The applicant shall pay cost of this Notice of Motion of Rs.5,000/- Rupees Five Thousand only to the decree holder.
Order on Notice of Motion No.2518 of 2019 -
The instant execution proceedings is for execution of the consent decree in suit no.4720 of 2009. The Notice of Motion no.3318 of 2019 filed by Mr. Eric D\''souza, obstructionist is dismissed today. All the contentions raised by the obstructionist in his reply to the instant Notice of Motion are considered in Notice of Motion no.3318 of 2019 and the said Notice of Motion is dismissed on merits. The J.D. No.2 has not objected to the execution. Therefore, Notice of Motion no.2518 of 2019 is made absolute in terms of prayer clause b, e and f of Notice of Motion. Hence, order -
ORDER
1. The Notice of Motion No.2518 of 2019 is made absolute in terms of prayer clause b, e and f of Notice of Motion.
2. For the sake of convenience prayer clauses b, e and f are represent as under -
b. That this Hon\''ble Court issue Writ under Order XXI, Rule 352 thereby directing the Sheriff of Mumbai to remove the respondent abovenamed and vacate the suit premises and delivery of possession of the suit property to the plaintiff and defendant no.2 after the notice is made absolute.
e. For a permanent injunction restraining the respondent from dealing with, disposing off, creating any third party rights and/or inducting any third party into the suit property namely, 56 Church View, Gokhale Road North, Dadar West, Mumbai 400 028, or any part thereof in any manner whatsoever
f. For a permanent injunction restraining the Respondent, his relatives, servants and agents from obstructing the entry of the plaintiff into the suit property namely, 56 Church view, Gokhale Road North, Dadar West, Mumbai 400 028, or any part thereof in any manner whatsoever
Adjd to 28.06.2021 for Compliance.
Nature Of Disposal: ALLOWED
Disposal Date: 01-04-2021