Interim Order 1

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(Bandra Branch)
ORDER BELOW EXHIBIT – 11
in
Execution Application No. 72 of 2021
[ CNR No.:- MHSCA3-000804-2021 ]
in
R.A.D. Suit No.367 of 2014
1. Mrs. Lakkhudevi wd/o. Motilal Dhobi & Anr. … Plaintiffs/DH
Versus
M/s. Earth Graphics & Ors. … Defendants/JD
V. R. Tripathi, learned advocate for the Plaintiffs/DH.
M. A. Chandan, learned advocate for the Defendants/JD.
Coram : Smt. Nutan S. Saraf
Judge,
C.R. No. 40,
Date : 15th September, 2023.
:: ORDER ::
This is an application moved by the interveners/applicants
to condone delay for filing this application, join them as party, allowed
them to file reply and to stay this execution application until the
disposal off injunction application in R.A.D. Suit No. 126/2015. The
original plaintiff filed reply vide Exh.12 on this application.
2. It has been submitted by the applicants that the plaintiffs
and applicants I.e. original defendant no.2 and 3 are the heirs of the
original tenant late Mr. Motilal Dhobi and also the party to this suit i.e.
R.A.D. Suit No. 367 of 2017 by the plaintiffs. This R.A.D. Suit No.367 of
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2017 was filed by the defendant no.1 herein for declaration and to
protect possession of suit premises (suit premises being a structure/shed
admeasuring only 86 sq.ft. made of brick wall and cement sheet roof
near building no.1 in the property of the defendant no.1) as the
defendant no1. Was in the process of redevelopment the building no.1
and adjacent buildings. The consent terms dated 19th December, 2018
was filed by the plaintiff and the defendant no.1 and was without the
knowledge of Interveners/applicants. Somewhere in January 2021, the
interveners/applicants learnt from the common source that certain
documents were filed in this R.A.D. Suit No. 367 of 2017 and thus they
approached the defendant no.1 who provided them with the copy of the
consent terms filed by them in R.A.D. Suit No. 367 of 2017 through
letter dated 4th February, 2021. The interveners/applicants have already
filed a declaratory suit viz. R.A.D. Suit No. 126 of 2015 against the
plaintiffs and defendant no.1. After the interveners/applicants became
aware of the fact that possession of the suit premises is ready and the
defendant no.1 may part with the possession of the suit premises to the
plaintiffs, they have filed an injunction application in R.A.D. Suit No.
126 of 2015. Recently while attending the R.A.D. Suit No. 126 of 2015,
they became aware of the fact that this execution application has been
moved by the plaintiffs. Thus, being aggrieved by the fact they have
moved this application. The interveners/applicants are just, proper and
necessary parties to the above execution application. It is therefore a fit
case where they may be heard in this execution application, especially
when they are already joined as party defendant no.2 and 3 in this suit,
and they be allowed to filed their rely in the above execution
application. If the application is allowed, no harm or prejudice will be
caused to the plaintiffs, as matter may be decided on merits. If the
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application is rejected, great harm and prejudice would be caused to the
interveners/applicants, which cannot be compensated in terms of
money. The balance of convenience also lies in favour of
interveners/applicants. Hence, this application.
3. The reply filed by plaintiff no.2 and strongly objected the
present application that the Power of Attorney is forged and fabricated
document. The suit is already dismissed against the
interveners/applicants. They were parties being defendant no.2 and 3 of
this suit and always attended the court, they were fully aware about
consent terms and no interest in this suit because the another suit is
pending, therefore, they did not take any objection for consent terms.
The present application taken out so-called Power of Attorney holder
Mr. Bhaskar shetty who has at the instance at the investigation of
defendant no.1 M/s. Earth Graphic. Mr. Bhaskar Shetty is employee of
the defendant landlord. There is no Power of Attorney given by the
applicant therein. The applicants creating hurdles in the execution of
decree. Hence, prayed to reject this application of them and not to
allow the join as party to file their reply.
4. The defendant no.1 filed reply on this application and
contended that the interveners who were the defendant no.2 and 3 in
the original suit are necessary party. Hence, prayed to allow their
application.
5. It has be argued by learned advocate on behalf of applicants
that the applicants and plaintiffs are heirs of original tenant. In the
original suit without intimation to them plaintiff and defendant no.1
filed consent terms, said consent terms are without their knowledge.
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They already filed R.A.D. Suit No. 126 of 2015 against the plaintiffs and
defendant no.1, they became unaware of the fact that possession of the
suit premises ready and the defendant no.1 may part with the
possession of suit premises to them. Therefore, the learned advocate for
applicants argued that the applicants are just, proper and necessary
party to the above Execution Application, therefore, they allowed to
filed their reply in this proceeding, then no harm or prejudice will be
caused to plaintiffs if rejected them great harm would be caused to the
applicants which can not compensate in terms of money. To support the
argument advanced by the applicants, he relied on case laws reported in
(1996) 5 Supreme Court Cases 379 Aliji Momonji & Co. Vs. Lalji Mavji
& others and 2018 S.C.C. OnLine Bombay 20349 Arun R. Singh &
another Vs. Municipal Corporation of Greater Mumbai and others. With
help of Arun Singh’s case law cited supra the learned advocate argued
that the applicants are necessary and proper party to adjudicate the
dispute of the case. Therefore, prayed to allow this application.
6. The learned advocate for plaintiff no.1 argued that the
applicants were not challenged the decree passed in the original suit as
per the terms of compromise. They are aware about the consent terms
and decree of the original suit. It is settled legal position of law that
court can not go behind the decree, therefore, the application is not
tenable in the eye of law. To support the argument advanced by the
learned advocate he relied on copy of Power of Attorney, case laws
reported in 1970 (1) Supreme Court Cases 670 Vasudev Dhanjibhai
Modi Vs. Rajabhai Abdul Rehman & other, therein Hon’ble Supreme
court held that ‘Execution-Executing Court- Powers of petition for
execution of decree in ejectment-Objection to validity of decree-
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Maintainability-Such objection when entertainable before executing
Court’. Interim Application (L) No.11624 of 2021 in Suit No.2700 of
2011 dated 11/06/2021 reported in MANU/MH/1586/2021. Hence,
prayed that interventer application is taken out by General Power of
Attorney Bhaskar Shetty but the original defendant no.2 and 3 were not
come in the court. Said Power of Attorney holder is Manager of
defendant no.1, therefore in collusion with him the present false
application filed to delay the proceeding.
7. On the other hand defendant no.1 argued as per his reply
that the applicants are necessary and proper parties.
8. I considered the arguments advanced by both sides at
length. Perused application, say, relevant documents and case laws
submitted by both parties. I have also gone through the original
proceeding of said execution. It is on record that the original suit
bearing no. R.A.D. Suit No. 367 of 2014 is decreed as per consent terms
vide Exh.36. Therein matter settled between plaintiff and defendant
no.1 and plaintiff withdrawn suit against defendant no. 2 and 3. The
applicants/interveners were parties to the original suit and as per the
above said consent terms vide Exh.36 they were withdrawn by plaintiff
and order passed vide Exh.1 by my learned predecessor to disposed off
suit in view of consent terms. Under such contingency, it is contention
of the applicants that they are proper and necessary parties to the
Execution proceeding. As of today, there is nothing on record to show
the execution of decree would be affect the rights of the applicants as
regard subject property. Therefore, they can’t be added because they are
not shown any right in the suit property. They are not shown that tenant
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in the property. Applicants only legal heirs of original tenant but they
were not brought on record their rights in the suit property as such at
the time of death of original tenant they were remained present in the
suit property along with the deceased. There is no specified reason what
their rights were affected, therefore, being only L.Rs of the original
tenant it doesn't mean that they are necessary/proper party to this
proceeding. I have gone through the case laws submitted by the
applicants, it is settled legal position of law for joining necessary/proper
party in the suit /proceeding but fact and circumstances of this case are
different than the case laws submitted by the applicants. Therefore, the
said case laws not at all applicable to the case in hand. Considering the
discussion held above this court found that there is no substance to
condone the delay to file this application and allow to the
applicants/interveners to file their reply. Furthermore, to stay this
Execution Proceeding upto decision interim application in R.A.D. Suit
No. 126 of 2015 is not at all permissible. Hence, considering the
discussion made above, I proceed to pass following order :
:: O R D E R ::
1. Application (Exh.11) is rejected.
2. Both parties to take note of this order.
3. Cost in cause.
( Nutan S. Saraf )
Date: 15/09/2023. Judge, C.R. No. 40
Order dictated & Typed on : 15/09/2023.
Order checked & signed on : 15/09/2023.
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