Final Order 1

Order Details: Chamber summons
Pdf Text: Ch/s.1621/19 Sum.Suit 3434/2011 1
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.1621 OF 2019
IN
SUMMARY SUIT NO. 3434 of 2011
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
( CNR NO.: MHCC010091682019)
Manish Dinesh Salvi ...Applicant
IN THE MATTER BETWEEN
Dinesh L. Salvi ...Plaintiff
Versus
Union of India & Others. ...Defendants
Appearances:
Advocate Mr.Devang H Shah for the Plaintiff.
Advocate Mr.A.K.Saxena for the Defendants.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 13th JANUARY 2020
J U D G M E N T
1. By this Chamber Summons the applicant/legal representative of
the plaintiff requested to grant permission to carry out amendment in
the decree dtd.18.03.2016 by recording names of the legal
representatives of the deceased plaintiff.
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Ch/s.1621/19 Sum.Suit 3434/2011 2
2. The defendants No.1A to 5 resisted the Chamber Summons.
3. The Ld advocate on behalf of the plaintiff argued that during
pendency of Execution petition the plaintiff died. Therefore, his legal
representatives are to be brought on record by carrying out amendment
in the decree. Therefore, he requested to allow the application.
4. On the other hand, Ld advocate on behalf of defendant argued
that the plaintiff died on 17.02.2017, thus, there is delay of about 2
years and 6 months. The defendant has taken out the Notice of Motion
for setting aside the Exparte decree which is pending, therefore, the
present chamber summons cannot be allowed. He requested to keep the
Chamber Summons in abeyance.
5. It is not disputed that the applicant and two others, as referred in
the schedule annexed to the Chamber Summons, are the legal
representatives of deceased plaintiff. The copy of death certificate
annexed with the affidavit of Chamber Summons reveals that the
plaintiff died on 17.02.2018 and not on 17.02.2017. The present
Chamber Summons is filed on 14.08.2019. Thus, it cannot be said that
the Chamber summons has been filed after two and half yrs of death of
the plaintiff. In any case, as per order 22 rule 12 the provisions of rule
3,4 and 8 of Order 22 are not applicable to Execution proceedings.
Thus, there is no strictness to bring the legal representatives on record
within stipulated period of 90 days. In this background the contention
that there is delay to file the application is not acceptable. Even in reply
the defendant states that the plaintiff is entitled to bring legal heirs on
record. However, objection of the defendant is that Notice of Motion for
setting aside Exparte decree is pending. But, this court must note that
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Ch/s.1621/19 Sum.Suit 3434/2011 3
there is no prohibition to allow the Legal representatives on record
during pendency of Notice of Motion. Therefore, contention of the
defendant is not acceptable. Having regard to the overall circumstances,
it is just and proper to grant permission to the applicant to bring legal
representatives of deceased plaintiff on record by correcting the
Execution Application. So far as request to grant permission to carry out
amendment in decree is concerned, since correction is being made in
the execution application, there is no need to carry out amendment in
the decree. As such the request to carry out amendment in the decree is
rejected. However, permission should be granted to carry out
amendment in the Execution Application. In the conclusion order as
follows is passed:
ORDER
1. The Chamber Summons No.1621 of 2019 is allowed as under.
2. Permission is granted to the plaintiff to carry out amendment in
the Execution Application by taking legal representatives of deceased
Dinesh on record.
3. The plaintiff to carry out the amendment on or before next date.
4. The Chamber Summons No. 1621 of 2019 is disposed
accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 13/01/2020 City Civil Court, Gr. Mumbai
Dictated on : 13/01/2020
Transcribed on : 14/01/2020
Signed on : 14/01/2020
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Ch/s.1621/19 Sum.Suit 3434/2011 4
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
16/01/2020 at 1.45p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 13/01/2020
Judgment/Order signed by P.O. on 14/01/2020
Judgment/Order uploaded on 16/01/2020
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