Interim Order 2

Order Details: Order on Exhibit
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IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT – 1
IN
EXECUTION APPLICATION NO. 119 of 2023
(CNR No. :- MHSCA3-001065-2023)
IN
R.A.E. & R. SUIT NO. 299/732 of 2005
Shri Foolchand D. Tiwari (since deceased deleted)
1. Shri Shambhunath Fulchand Tiwari and Ors. … Plaintiffs
Versus
Shri Sunil Ganpat Jalgaonkar ... Defendant
Mr. V. S. Yadav, Ld. Advocate for the Plaintiffs.
Mr. Jeet Gandhi, Ld. Advocate for the Defendant.
Coram :- P. K. Kharate, Judge
C. R. No. 36 [B.B.]
Date :- 04/01/2024
ORDER :
The present execution proceeding is filed by the
plaintiffs/decree holders in respect of execution of decree passed
in R.A.E. & R. Suit No. 299/732 of 2005 dated 22/01/2010. The
defendant/judgment debtor is duly served on 27/12/2023 as per
Exh. 5. The judgment debtor also filed VP vide Exh. 7.
2. Heard learned advocate for decree holders. The Advocate
for decree holders requesting to issue possession warrant against
judgment debtor under Order XXI Rule 35 of the Code of Civil
Procedure, 1908. There is no stay order from the Hon'ble
Appellate Court for execution of decree as per report of Index
Clerk. Moreover, the decree holders have also filed affidavit vide
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.. 2 .. EXH-1 Execution Application No. 119 of 2023
Exh. 6 stating that, an appeal bearing A-1 Appeal No. 48 of 2010
preferred by the defendant against judgment and decree dated
22/01/2010 is dismissed. The defendant has not brought stay from
the Hon’ble High Court.
3. I perused the judgment and order dated 11/07/2023 of
the Hon’ble Appellate Court. It means, since more than 5 months
the judgment debtor has failed to obtain the stay from the Hon’ble
High Court to the decree in R.A.E. & R. Suit No. 299/732 of 2005
dated 22/01/2010. There is no stay order to the decree as per
report of Index Clerk. Hence, I find no hurdle to issue possession
warrant against judgment debtor. Hence, I pass the following
order.
: ORDER :
1. Issue warrant of possession under Order XXI
Rule 35 of the Code of Civil Procedure, 1908 on
required process fees against defendant/
judgment debtor to hand over vacant and
peaceful possession of the suit premises viz.
Room No. 7 admeasuring 10’x15’, situated on
land bearing Survey No. 15-A (Pt.) of Village
Malad, Taluka Borivali, Smt. Hiradevi F. Tiwari
Chawl, Dhobighat, Tanaji Nagar, Kurar Village,
Malad (East), Mumbai – 400 097 to the
plaintiffs/decree holders as per the judgment and
decree.
/home/steno36/7. P.K. Kharate/2024/1. January, 2024/Orders/04.01.2023/EXH-1 Exe. Application 119 of 2023. possession warrant.odt KCP
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.. 3 .. EXH-1 Execution Application No. 119 of 2023
2. Shri P. D. Ingole, the Bailiff of this Court is
hereby directed to execute the warrant of
possession of the suit premises, as per the
judgment and decree dated 22/01/2010.
3. The warrant of possession is returnable on
18/01/2024.
4. The concerned Bailiff is further directed to
prepare the Panchnama and inventory of articles
and articles given in custody of plaintiffs/decree
holders tentatively till further order.
(Dictated and pronounced in open Court.)
sd/-
(P. K. Kharate)
Date : 04/01/2024 Judge, C.R. No. 36
Order dictated and typed on : 04/01/2024
Order checked and signed on : 04/01/2024
/home/steno36/7. P.K. Kharate/2024/1. January, 2024/Orders/04.01.2023/EXH-1 Exe. Application 119 of 2023. possession warrant.odt KCP
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