Order 3

Order Details: Order on Exhibit
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(CNR No.MHSCA3-000013-2024)
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO. 26
IN
EXECUTION APPLICATION NO.09 OF 2024
IN
R.A.E.&.R. SUIT NO.80/205 OF 2003
Mrs. Matilda D’Silva (since deceased)
1(a). Dallas D’Silva & Ors. … Applicants/DH
(Orig. plaintiffs)
Versus
1. Mr. Mithailal Ramkaran Tiwari (since deceased)
1(a) Mr. Radheshyam M. Tiwari (since deceased)
1a)(i) Mrs. Jadavati w/o Radhesham Tiwari
& Ors. … Respondents/JD
(Orig. defendants)
Shri.Mehervan R. Irani, Ld.Advocate for plaintiff Nos.1(a) to 1(d).
Coram: Smt. J.D.Hushangabade, Judge.
C.R.No.34(BB),
I/c Judge, C.R. No.40,
Date : 11.03.2026.
ORAL ORDER:
1. This is an application filed by plaintiff No.1(b) for
himself and on behalf of other plaintiffs for directing the bailiff of
this Court to break open the said brick wall having a height of
eight feet and a length of eight feet, built on the entrance to the
portion of the suit premises admeasuring 224 square feet and to
handover possession of the said portion of suit premises to the
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plaintiffs well mentioned in Judgment and decree passed in
R.A.E.&.R. Suit No.80/205 of 2003.
2. It is specifically stated in the application that the
plaintiffs had filed the above suit against the defendants for eviction
from the premises consisting of a hall, bedroom and a kitchen
admeasuring 349 square feet situate at House No.170 known as
“Esperance Miranda Chawl” situate near Habib Manzil, Vakola Masjid
Lane, Santacruz (East), Mumbai-400 055 (hereinafter referred to as
the “suit premises”). By an judgment and order dated 31.07.2023
passed by this Court in R.A.E.&.R. Suit No.80/205 of 2003, a decree
in eviction was passed against defendant Nos.1 and 2, who were
directed to handover vacant and peaceful possession of the suit
premises to the plaintiffs. No appeal was filed against the said
judgment and order dated 31.07.2023 by the defendants. No stay of
the said order dated 31.07.2023 was granted by the Hon’ble
Appellate Court, Hon’ble High Court, Hon’ble Supreme Court or any
other Court and the plaintiffs have therefore become entitled to
execute the said decree.
3. The plaintiffs took out present Execution Application
No.09 of 2024 in the said suit for issuance warrant of possession
against defendant Nos.1 and 2 and that they be directed to handover
vacant and peaceful possession of the suit premises. By an order
dated 11.11.2025 the issue of warrant of possession in respect of the
suit premises for execution of decree passed in R.A.E.&.R. Suit
No.80/205 of 2003. The said order also directed Mr. D.A. Yadav,
bailiff to execute warrant of possession and to submit his report on or
before next date i.e. 02.12.2025.
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4. Pursuant to the said order dated 11.11.2025 the said
bailiff went along-with Mr. Dallas D’Silva, plaintiff Nos.1(a) & 1(b) to
execute the warrant of possession against the defendants at suit
premises on 19.11.2025 between 11.15 am to 12.10 p.m. They
identified the suit premises, which was illegally partitioned in two
portions viz. 125 square feet, which was closed by a locked shutter
and the other portion of 224 square feet of the suit premises, whose
entrance was closed by a brick wall having a height of eight feet and
a length of eight feet. Defendant Nos.1a(i), (ii), (iii) and 3 and Gaji
Darbar Caterers i.e. defendant No.4 were not found at the suit
premises. In the meantime defendant No.2 came at the suit premises
and though he was explained by the bailiff the purpose of his visit
and contents of the writ of warrant of possession, defendant No.2
informed the bailiff that he has no authority to break the said brick
wall on the entrance to the portion of the suit premises admeasuring
224 square feet and he went away from the suit premises. In the
circumstances, the said warrant of possession could not be executed
and the bailiff returned for further orders.
5. Defendant No.4 Gaji Darbar Caterers (through its
proprietor Wasim Ziyaarat Khan) filed a Writ Petition No.16049 of
2025 before the Hon’ble High Court at Mumbai, challenging the
impugned order dated 10.11.2025 passed in Revision Application
No.75 of 2025 by the Hon’ble Small Causes Court at Mumbai, Bandra
Branch (Appellate Branch) dismissing the said Revision Application.
The said Revision Application was filed against the order dated
02.08.2025 passed MARJI Application No.4 of 2025 by this Court
rejecting the application for condonation of delay for setting aside
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exparte decree dated 31.07.2023 against defendant No.4.
6. The said consent Minutes of the order directs that the
decree dated 31.07.2023 and warrant of possession shall not be
executed against the petitioner (defendant No.4) till the hearing and
final disposal of the application to be taken out by petitioner to set
aside exparte decree dated 31.07.2023 against the petitioner. Since
13.08.2012 the portion of suit premises of 224 square feet has no
entrance as the only entrance to it is blocked by the said brick wall of
having a height of eight feet and a length of eight feet. In order to
come to the said portion of suit premises of 224 square feet, a person
has to enter from the entrance of shop No.3 which was common for
the portion of suit premises of 224 square feet. There was no wall in
between the said shop No.3 and the suit premises of 224 square feet
till Ramesh Narayan Anchan, defendant No.2 herein, illegally
constructed it on 13.08.2012. Plaintiff No.1(b) had photographs
taken on 13.08.2013 which shows the said brick wall on rear side of
shop No.3, hereto annexed and marked Exhibits D, E and F are three
photographs, which shows the said brick wall. The marked “G”is
copy of the bailiff report dated 13.08.2012 in Execution Application
No.92 of 2011 in RAE Suit No.371 of 1995.
7. It is, therefore, just, necessary and in the interest of
justice that the bailiff be directed to break open the said brick wall
having height of eight feet and a length of eight feet built on the
entrance to the portion of the suit premises admeasuring 224 square
feet and to handover possession of the said portion of the suit
premises admeasuring 224 square feet to the plaintiffs.
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8. Defendant No.2 failed to file reply though served the
notice of present application upon him.
9. Perused the application, report of Index Clerk dated
11.03.2026, judgment passed by this Court on 31.07.2023 in
R.A.E.&.R. Suit No.80/205 of 2003 filed by Ld. Advocate for the
plaintiffs/decree-holders. I have also gone through the record and
proceeding of the matter. Heard the plaintiffs/decree-holders.
10. It appears from perusal of order dated 08.12.2025
passed in Writ Petition No.16049 of 2025 by the Hon’ble Bombay
High Court that the said consent Minutes of the order directs that the
decree dated 31.07.2023 and warrant of possession shall not be
executed against the petitioner (defendant No.4) till the hearing and
final disposal of the application to be taken out by petitioner to set
aside exparte decree dated 31.07.2023 against the petitioner.
11. It also appears from perusal of record that the warrant of
possession was issued by this Court by an order dated 11.11.2025
passed below Exhibit No.1. Accordingly, the bailiff went to the
address of the suit premises to execute warrant of possession on
19.11.2025. As per bailiff report dated 19.11.2025, it reveals that
the suit premises partitioned in two portions viz. 125 sq.ft. & 224
sq.ft. The area of 224 sq.ft. of the suit premises, whose entrance was
closed by a brick wall having height of 8 ft. & length of 8 ft. It is case
of the decree-holders that since 13.08.2012 the portion of suit
premises of 224 square feet has no entrance as the only entrance to it
is blocked by the said brick wall of having a height of eight feet and a
length of eight feet. In order to come to the said portion of suit
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premises of 224 square feet, a person has to enter from the entrance
of shop No.3 which was common for the portion of suit premises of
224 square feet. There was no wall in between the said shop No.3
and the suit premises of 224 square feet till Ramesh Narayan Anchan,
defendant No.2 herein, illegally constructed it on 13.08.2012.
Plaintiff No.1(b) had photographs taken on 13.08.2013 which shows
the said brick wall on rear side of shop No.3.
12. Report of Index Clerk is called today. Index Clerk has
given report dated 11.03.2026 mentioning that as per last noting of
Index register entry & stay register entry & CIS entries checked, there
is no any noting of stay has been seen. (Last stay dtd.26.11.2025 in
W.P.No.16049/25). As per bailiff report, defendant No.2 informed
him that he has no authority to break bricks wall of portion of the
suit premises 224 sq.ft. and he went away from the suit premises.
Considering the above facts and circumstances on record, in my view,
it is necessary to allow break open said brick wall as it is on the
entrance of area of 224 sq.ft. of the suit premises. Otherwise, the
possession of said portion of the suit premises cannot be handed over
to the decree-holders. Therefore, for execution of warrant of
possession in this proceeding, the application needs to be allowed. It
appears that warrant of possession requires to be re-issued with the
assistance of police and with directions to break open the said brick
wall having a height of eight feet and a length of eight feet, built on
the entrance of the portion admeasuring 224 sq.ft. of the suit
premises and to handover possession of the said portion of suit
premises to the plaintiffs well mentioned in judgment and decree
dated 31.07.2023 passed in R.A.E.&.R. Suit No.80/205 of 2003.
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Hence, I proceed to pass the following order:-
: ORDER :
1. Application Exhibit No.26 is allowed as under:-
(A). Re-issue warrant of possession in view of
Order 21 Rule 35 of the Code of Civil Procedure
against defendant Nos.1(i), (ii), (iii), 2 & 3 or
any person on their behalf to deliver vacant and
peaceful possession of 224 sq.ft. of the suit
premises to the plaintiffs/decree-holders as per
judgment and decree dated 31.07.2023 passed
in R.A.E.&.R. Suit No.80/205 of 2003 and as
per order dated 11.11.2025 passed below
Exhibit No.1.
(B). The decree dated 31.07.2023 and warrant
of possession shall not be executed against
defendant No.4 as per order dated 08.12.2025
passed in Writ Petition No.16049 of 2025 by the
Hon’ble Bombay High Court.
(C). Senior Inspector of Police, Vakola Masjid
Lane, Santacruz (East) Police Station, Mumbai-
400 055 is hereby directed to provide police
assistance to the bailiff of this Court for
execution of warrant of possession as per rule
on payment of requisite Bhatta with the
concerned police station.
(D). Bailiff Shri. M. P. Pawar is hereby directed
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to break open the said brick wall having a
height of eight feet and a length of eight feet,
built on the entrance to the portion of the suit
premises admeasuring 224 square feet and
execute the warrant of possession as per
provisions of Order 21 Rule 35(3) of the Code
of Civil Procedure.
(E). The bailiff is directed to prepare the
inventory of the articles lying in the suit
premises, if any, in presence of the plaintiffs,
one Panch and concerned police constable and
safe custody of articles mentioned in the
Inventory be given to the plaintiffs, who shall
keep the said articles in their possession until
further orders.
2. Additional Registrar of this Court to issue letter to
the concern Senior Police Inspector.
3. The bailiff to submit his report on or before next
date.
Place : Mumbai (J.D.Hushangabade)
Date : 11.03.2026 Judge, C.R.No.34(BB).
I/c Judge, C.R. No.40.
Order dictated & Typed on : 11.03.2026.
Order checked & signed on : 13.03.2026.
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