Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010091672019
CNR NO. MHCC010091672019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1620 OF 2019
IN
SUMMARY SUIT NO.3309 OF 2012
(HIGH COURT SUIT NO.1182 OF 2012)
Dinesh L. Salvi ]… Applicant/Plaintiff
V/s.
Union of India & Ors. ]...Defendants.
Appearance:
Adv. Deven Shah alongwith Advocate Ms. Pawar for the
applicant/plaintiff.
Adv. A.K. Saxeba for the defendant Nos.2 and 3.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.13)
DATED : 18th February, 2021
ORAL ORDER
1. Applicant took out this Chamber Summons to permit to
carry out the amendment in the Ex-parte Decree.
2. Perused Chamber Summons, affidavit in support of
Chamber Summons and reply of the defendant Nos.2 and 3. Heard
Learned Advocate Deven Shah alongwith Advocate Ms. Pawar for the
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applicant/plaintiff and Adv. Mr. A.K. Saxeba for the defendant Nos.2
and 3.
3. Following points arise for my determination, I record my
findings for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1 Whether applicant can be permitted to
carry out amendment in the Ex-parte
Decree dated 06.04.2015?
In the negative.
2. What Order ? Chamber Summons
is partly allowed as
per final order.
REASONS
As to point Nos.1 & 2.
4. In brief, it is contention of the applicant that plaintiff
Dinesh died on 17.02.2018, leaving behind three legal heirs wife, son
and daughter. Ex-parte decree is passed on 06.04.2015 in Summary
Suit No.3309 of 2012. Execution Application was also filed therefore,
applicant’s be permitted to carry out amendment in the Ex-parte decree
as per schedule filed with this Chamber Summons.
5. In brief it is contention of the defendant Nos.2 and 3 that
according to the applicant original plaintiff died on 17.02.2017 so there
is delay of two years and six months to bring the legal heirs on record.
During the pendency of Notice of Motion which is taken out by the
defendant for setting aside the Ex-parted Decree, it is not proper in the
interest of Justice to allow the Chamber Summons to bring the L.R.’s on
record as prayed for. If the Notice of Motion which is taken out by the
defendants is allowed then again applicant has to take out Chamber
Summons to make amendment in the plaint for bringing on record the
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L.R.’s of the plaintiff. Therefore, till the final disposal of the Notice of
Motion No.2576 of 2017 this Chamber Summons be kept in abeyance.
6. Perused Order 22 Rule 3 Sub Rule 1 of the Code of Civil
Procedure. As per the said rule where one of two or more plaintiffs dies
and the right to sue does not survive to the surviving plaintiff or
plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the
right to sue survives, the Court, on an application made in that behalf,
shall cause the legal representative of the deceased plaintiff to be made
a party and shall proceed with the suit.
7. Perused Order 22 Rule 12 of the Code of Civil Procedure.
As per said provision Rule 3, 4 and 8 of Order 22 of the Code of Civil
Procedure are not applicable to the proceedings in Execution of Decree
or Order. Therefore, there is not question of delay in taking out
Chamber Summons to bring the L.R.’s on record. Admittedly, Execution
is pending. I am of the considered view that after preparation of the
decree LR’s can not be brought in the decree. Therefore, permission
cannot be granted as sought for to make amendment in the Ex-parte
decree by bringing the LR’s deceased plaintiff. At the most applicant
can be permitted to bring the LR’s of deceased plaintiff in the Execution
proceedings. If applicant is permitted to bring the LR’s of deceased
plaintiff in Execution Proceedings than no prejudice will cause to the
defendant. Hence, I record my findings to point No.1 in the negative
and point No.2 is partly allowed as per final order. Hence, I proceed to
pass the following order:
ORDER
Chamber Summons no. 1620 of 2019 in Suit no. 3309 of 2012
(Disposed of) is partly allowed as under-
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1. Prayer for carrying out amendment by bringing the LR's of deceased
plaintiff in exparte decree is hereby rejected.
2. Applicant is permitted to bring the LR's of deceased plaintiff and
carry out amendment in Execution Application i.e. Execution no. 372 of
2017.
3. Applicant is permitted to carry out amendment as directed above till
05-03-2021 and file on record amendment copy of the Execution
Application and serve it to the defendant.
Order is dictated and pronounced in open court.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
Dt.: 18/02/2021 City Civil Court, Gr. MUMBAI
Dictated on : 18.02.2021
Transcribed on : 20.02.2021
Checked on : 20.02.2021
Signed on : 23.02.2021
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
23.02.21 at 05.55 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.13)
Date of pronouncement of judgment/order 18.02.2021
Judgment/order signed by P.O. on 23.02.2021
Judgment/order uploaded on 23.02.2021
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