Bombay High Court
Dr. Aurnkumar S/O Naryanrao ... vs Dr. Krishnamanohar S/O Babulal ... on 11 July, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5926/2015
Dr. Arunkumar s/o Narayanrao Deshmukh,
aged about 70 Yrs., Occu. Medical Practitioner,
R/o Irwin Chowk, Morshi Road, Amravati,
Tah. and Distt. Amravati. ..Petitioner.
..VS..
Dr. Krishnamanohar S/o Babulal Jaiswal,
aged about 70 Yrs., Occu. Business,
r/o Madhuban Society, Camp Amravati,
Tah. and Distt. Amravati. ..Respondent.
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Shri J.J. Chandurkar, Advocate for the petitioner.
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CORAM : Z.A.HAQ, J.
DATED : 11.7.2016.
ORAL JUDGMENT
1. This Court issued notice for final disposal after service of which Advocate
for respondent put in his appearance and sought time on 15 th February, 2016 and 2nd
March, 2016. None appeared for the respondent on 25 th April, 2016 and 20th June,
2016. Today also none appears for the respondent. Heard Shri J.J. Chandurkar,
Advocate for the petitioner - decree holder.
2. The petitioner had filed civil suit praying for decree for eviction and other
ancillary reliefs. The civil suit is decreed by the judgment dated 13 th March, 2009.
In the execution proceedings, the respondent - judgment debtor has filed an
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application under Order 21 Rule 97 and Rule 99 read with Section 47 and 151 of the
Code of Civil Procedure contending that the decree passed in Regular Civil Suit
No.6/2008 on 13th March, 2009 is null and void and not enforceable. The
petitioner - decree holder has filed an application (Exh. No.30) under Order 39 Rule
11 read with Section 151 of the Code of Civil Procedure praying that the judgment
debtor be directed to deposit Rs.11,70,000/- towards occupation charges for the
period from March, 2009 (from the date of decree) till July, 2014 and the judgment
debtor be directed to deposit Rs.18,000/- per month from August, 2014 onwards
towards occupation charges. The Executing Court has passed order on this
application (Exh. No.30) directing the judgment debtor to deposit Rs.60,000/-
towards arrears of rent till March, 2014 and to deposit Rs.1558.42/- per month with
increase of 4% per annum from April, 2014 onwards. The petitioner - decree holder
being dissatisfied with the above order, has filed this writ petition.
The learned Advocate for the petitioner has submitted that the judgment
debtor is occupying two shop blocks admeasuring 260 Sq. Ft. situated in prominent
commercial area. It is submitted that the rent of two shop blocks as per the tenancy
agreement executed in January, 1990 was Rs.900/- per month and now the judgment
debtor has to deposit the occupation charges and it cannot be at the meager rate of
Rs.1558.42/- per month as directed by the Executing Court.
The Executing Court has failed to note the distinction between rent and
occupation charges.
Considering the facts on record specially that the judgment debtor was
paying Rs.900/- per month pursuant to the tenancy agreement of January, 1990 and
the fact that the civil suit filed by the petitioner is decreed on 13 th March, 2009 and
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that the judgment debtor has not paid anything to the decree holder from the date of
decree, the following order will sub-serve the ends of justice.
(i) The respondent judgment - debtor is directed to pay occupation charges
at the rate of Rs.5,000/- (Rs. Five Thousand Only) per month from 14 th March, 2009
till 31st July, 2016.
The entire amount of arrears shall be deposited before the Executing
Court till 15th September, 2016.
(ii) The respondent judgment - debtor shall deposit Rs.5,000/- per month
from 1st August, 2016 regularly before 10 th of every month. The amount shall be
deposited before the Executing Court till the execution proceedings are disposed.
(iii) The impugned order passed by the Executing Court is modified in the
above terms.
(iv) As the execution proceedings are pending since 2013, the Executing Court
is directed to dispose the proceedings till 30th November, 2016.
(v) The petition is allowed accordingly.
(vi) In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
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CERTIFICATE
" I certify that this Judgment/Order uploaded is a true and correct copy of original
signed Judgment/Order".
Uploaded By : N.V. Tambaskar.
ig Uploaded On : 19.7.2016.
