Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM4335/19
IN THE COURT OF JUDGE CITY CIVIL COURT FOR GREATER
BOMBAY AT BOMBAY
NOTICE OF MOTION NO.4335 OF 2019
( CNR NO.: MHCC010118992019 )
IN
EXECUTION APPLICATION NO.217/2019
IN
MISC. APPEAL NO .196/2012
Devdas Krishna Shetty
Age: 58 years,
R/o:Shop No.8, 110 Municipal Tenements
D.G. Mahagani Path Sewreee,
Mumbai 400 015. ...Applicant/D.H
V/s.
The Municipal Corporation
of Greater Mumbai, Body Corporate
Constituted Under Mumbai Municipal
Corporation Act 1888, and having its
office at Mahapalika Marg,
Mumbai400 001. ...Respondent.
Appearance:
Mr. Rajiv Singh a/w Advocate Nirmal Chopda for the Applicant
Mr. Joel Gaqlos @ Adv. R. M. Hajare for the respondent/MCGM
CORAM : S.M. MENJOGE,
THE JUDGE CITY CIVIL COURT (C.R.17)
DATE : 28/07/2022.
O R D E R
1. This is an application under O.39 R.1,2 of C.P.C for restraining
the respondent Municipal Corporation Greater Bombay, from
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demolition of shop No.8, during pendency of execution proceeding.
Applicant also prayed for directing the respondent to hand over/ deposit
the keys of shops constructed in transit accommodation with this Court.
Applicant further prayed for restraining the respondent from creating
thirdparty interest in shops constructed in transit accommodation.
2. Respondent appeared and filed it reply and strongly opposed this
application on the ground that this is appellate Court and appellate
Court cannot execute the decree. Applicant has to go trial Court for
execution of decree. Secondly, shops are already demolished and hence,
prayer clause (a) and ( b) have become infructuous.
3. I heard both sides. It is found that applicant had filed Misc.Civil
Appeal No. 196/ 2012 against the respondent and consent decree was
passed by this Court on 26.11.2012. It was agreed by respondent on
affidavit that permanent shop shall be provided to the applicant in
building No.4, situated on C.T.S. No.451(pt)/ 452( Pt)/453(pt) of Parel
Sewree Division having rehab shops on ground floor, facing and
touching R.A. Kidwai Marg. And applicant accepted the said proposal
and consent decree was passed. However, according to the applicant,
said consent decree is not obeyed by respondent and respondent is
providing shop at another place i.e.at Taddeo. It is further submitted by
applicant that shops are constructed by respondent and kept vacant but,
respondent is not ready to handover the possession to the applicant.
Advocate for respondent strongly objected this application. He stated
that respondent had issued a letter to applicant on 25.11.2013 to vacate
the shop No.8 as per consent decree passed by this Court on
26.11.2012. It is not complied by applicant. Applicant’s shop is now
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demolished by respondent as applicant failed to vacate shop No.8 within
3 weeks from the date of decree. As per decree if the terms are not
complied with then respondent corporation was free act on the consent
order. Thus, according to respondent, as applicant failed to deliver
possession within three weeks as per consent order, he cannot file any
execution proceeding. Still corporation has decided to provide shop to
the applicant at another place.
4. It is the submission of the applicant that he was called upon by
the corporation to go to the builder and take possession of shop. He
further submitted that no builder will give possession to him as builder
is not party to the said proceeding. Possession ought to have been by
respondent corporation itself.
5. I have considered rival submissions of both parties. The consent
decree was passed on 20.11.2012. This execution proceeding and
application for temporary injunction is filed in the year, 2019. This
shows that applicant was not diligent. There is nothing on record to
show that this applicant had performed his part by vacating shop within
3 weeks from date of consent order. Now, shop of applicant is
demolished by corporation hence, question of restraining it from
demolition of shop and evicting the applicant does not arise. So far as
directing the respondent not to create any third party interest/rights in
the shops constructed, and to direct respondent to deposit the keys of
shops in the Court is concerned, it shall amount to grant of final relief.
Such relief cannot be granted at interim stage. Possession of shop can be
obtained by due procedure of law. Applicant has no prima facie case,
nor balance of convenience lies in his favour to grant injunction against
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respondent. Therefore, notice of motion i.e temporary injunction is
liable to be rejected. Hence, I pass following order.
ORDER
Notice of Motion No. 4335/2019 stands rejected and
disposed of accordingly.
( S.M. MENJOGE )
Judge ( C.R. 17)
City Civil Court,
Gr. Bombay.
Dictated on : 28.07.2022.
Transcribed on : 28.07.2022.
Signed on : 28.07.2022.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.07.2022. Mrs. S.S.Sawant
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
S.M. MENJOGE, Addl. Judge.,City Civil
& Sessions Court, (C.R.No.17).
Date of pronouncement of /Order 28.07.2022.
Order signed by P.O. on 28.07.2022.
order uploaded on 28.07.2022.
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