Final Order 1

Order Details: Other
Pdf Text: 1 MA 119/19
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
MISC. APPLICATION NO.119/2019
(CNR No.MHCC010104892019)
IN
S.C Suit No.1855/1985.
1. Mayur Dinesh Bhatt
2. Archana Dinesh Bhatt
3. Darshan Dinesh Bhatt ..Applicants
In the matter of :
1. Smt. Bhanuben Biharilal Bhatt
2. Dr. Dinesh Bhatt
3. Shri Madhusudan Biharilal Bhatt
4. Shri Parimal Biharilal Bhatt ...Plaintiffs
V/s.
Rajendra Gupta ...Defendant
Appearance:
Ld. Adv. Archit Manurkar I/b. R.J. Law for applicants.
CORAM : HHJ Shri V.V. Vidwans
C. R. No.03
DATE : 17.12.2019.
ORAL ORDER
1. This is an application filed by applicants for transfer of
original decree passed in Suit No.1855/1985 dated 31.3.1993 and seeking
leave to bring on record LRs of original deceased plaintiff no.2 on record
for taking necessary steps according to law, including execution of decree.
The application is supported by documents filed on record vide Exhs.A to
H, including authenticated copy of judgment and decree passed in Suit
No.1855/85 dated 31.3.1993. R & P of the above suit was called and it is
-- 1 of 4 --
2 MA 119/19
perused. I have also gone through the citations and authorities submitted
by Ld. Counsel for the applicants and taken into consideration ratio of said
decisions.
2. I have heard oral submission of Ld Counsel for the applicants
on 13.11.2019.
3. Briefly stated, the applicants no.1 to 3 are legal heirs of
original deceased plaintiff no.2 Dinesh Bhatt. It is submitted that, the
delay, if any caused, in filing the present application, has been condoned
by this Court vide order dated 27.9.2019 and as per provisions of Sec.2(3)
of CPC, decree holder has been defined which include transferee of decree
or legal heirs of decree holder. Therefore, present application filed by the
applicants no.1 to 3 as LRs of original plaintiff no.2 Dinesh Bhatt is very
much maintainable in law in view of ratio of the authorities of Hon'ble
Bombay High Court and Hon'ble Madras High Court. Ld. Counsel has
placed reliance on the following authorities in support of his above
submission.
1. Brijmohandas Damodardas V/s. Sadashiv Laxman
Naik (1939 DgLaw(Bom) 20).
2. Venkatachalam Chetti V/s. Ramaswami Servai
(Dead) and Ors. (1931 DgLaw (Mad) 324).
4. As per ratio of above said authorities, it can be seen that, LRs
of decree holder are entitled to represent his interest for taking any steps
in relation to execution proceedings. Therefore, prayer made by the
applicants in the present application is that, they are seeking leave of the
-- 2 of 4 --
3 MA 119/19
court to continue execution proceedings and as per Section 146 of CPC , it
is open for the LRs to continue with the proceedings in case where original
party dies, power to continue prosecution of the suit is derived as per
provisions of Order 22 Rule 3 of CPC. In case of execution proceeding, as
there is no specific provision, Order 21 Rule 16 can be brought into play,
which empowers the transferee to apply for execution of decree or seek
leave to continue the execution proceedings. In the present case, LRs are
placed on same footing with that of transferee of the decree and therefore,
in my opinion, the applicants have made out a case for continuing the
execution proceedings on behalf of deceased plaintiff no.2 as his LRs and
they are also entitled to seek transfer of the decree, as prayed in the
application. As per order dated 27.9.2019, this Court has held that, the
application, as framed and filed, is maintainable in law and the question of
limitation is kept open. In view of above, I proceed to pass following
order :
ORDER
Misc. Application No.119/2019 is hereby allowed as
under :
1. Applicants no.1 to 3 are hereby permitted to be brought
on record in execution proceedings as only legal heirs
and representatives of deceased plaintiff no.2 Dr. Dinesh
Bhatt.
2. The applicants are also granted leave and permitted to
take all necessary legal steps, including transfer of
decree proceedings, as LRs of deceased plaintiff no.2 in
the execution of decree passed in Suit No.1855/1985
-- 3 of 4 --
4 MA 119/19
dated 31.3.1993.
M.A. is disposed of accordingly.
(V.V. VIdwans)
Judge, City Civil Court,
Date: 17.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 17.12.2019
Typed on : 17.12.2019
Signed on : 18.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 18.12.19
TIME: 12.41 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 17.12.2019
Judgment/ order signed by P.O on 18.12.2019
Judgment/ order uploaded on 18.12.2019
-- 4 of 4 --