Final Order 1

Order Details: Notice of Motion
Pdf Text: Dt. 01.04.2021
Exe Appln. 412/17
NM No. 3318/19
NM No.2518/19
CORAM : H.H.J SHRI.C. V. MARATHE (C.R.NO.4)
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
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Dt. 01.04.2021
Exe Appln. 412/17
NM No. 3318/19
NM No.2518/19
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 35[2]
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.
Judge
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