Tazaldin Sardruddin Nanavati vs Theresa Mary Almeida And 15 Ors
2022 Latest Caselaw 12938 Bom

           Digitally signed
           by LAXMI

                                                                              12 exa 836-22..doc
LAXMI    SUBHASH
         SONTAKKE
SUBHASH Date:
SONTAKKE 2022.12.16
           12:18:19
           +0530




                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             ORDINARY ORIGINAL CIVIL JURISDICTION
                                             EXECUTION APPLICATION NO. 836 OF 2022
                                                                   IN
                                                        SUIT NO. 1714 OF 1985


                              Tazaldin Sadruddin Nanavati                  ..Applicant/Org. Plaintiff
                                                                             (Judgment Creditor)
                                       Vs.
                              Theresa Mary Almeida & Ors.                   ..Defendant Nos. 1 to 16 are
                                                                    Org. Defendants and out of them
                                                                   Nos. 1 to 12 are Judgment Creditors
                                                                       (Org. Defendant Nos. 1 to 12).


                              Mr. Cyrus Ardeshir a/w Ziyad Madon i/b. Kunal Bhanage, for the
                              Applicant.
                              Mr. Kunal Mehta a/w Simantini Mohite & Nirav Shroff i/b. Nirav
                              Shroff for Defendant No.13.

                                                                CORAM:- B. P. COLABAWALLA,J.

DATE :- DECEMBER 13, 2022.

P. C.:

1. By order dated 5th July, 2022, I had noted that a decree was

passed against Defendant Nos. 1 to 12 which was put in execution in the

above proceedings. By the said decree, Defendant Nos. 1 to 12 were

directed to execute the Deed of Conveyance in respect of the suit

property with the Plaintiff and/or his nominees in terms of Clause (8) of

the Agreement for Sale dated 13 th December, 1975 and have it registered

Laxmi page 1 of 3 12 exa 836-22..doc

within a period of three months from the date of uploading of the

aforesaid decree/judgment. The decree further contemplated that in the

event Defendant Nos. 1 to 12 did not execute the Deed of Conveyance

within the stipulated period, the Prothonotary and Senior Master shall

execute the Deed of Conveyance with the Plaintiff.

2. Since the concerned Defendants did not execute the Deed of

Conveyance, the above Execution Application was moved seeking

certain directions under Order XXI Rule 34 of the CPC 1908. Order XXI

Rule 34 contemplates that where the decree is for execution of a

document and the judgment Debtor neglects or refuses to execute the

document, the Decree Holder may prepare a draft of the documents in

accordance with the the terms of the decree and deliver the same to the

Court. This was duly done by the Plaintiff. Sub-Rule (2) of the Rule 34 of

Order XXI contemplates that the draft document has to be served on the

Judgment Debtor together with a notice calling for his objections, if any,

within such time as this Court deems fit.

3. Taking into consideration the provisions of Order XXI Rule

34 (2), I had directed the draft conveyance (annexed as attachment 1 to

the above Execution Application) to be served by the Registry on

Defendant Nos. 1 to 12 returnable on 17th August, 2022.

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                                                 12 exa 836-22..doc

4. Today the matter has been moved for two reasons. Firstly,

Defendant Nos. 1 to 12 have not been served as contemplated under

Order XXI Rule 34 for the reasons more particularly stated in the report

filed by the Sheriff of Mumbai dated 25 th July, 2022. The second reason

for moving the above matter is that there are certain changes that have

been effected in the draft Deed of Conveyance and which are more

particularly reflected in red colour in the draft handed in. The same is

taken on record and marked 'X' for identification.

5. Considering that the draft conveyance has undergone some

minor changes, it is directed that the Registry shall serve the draft

conveyance handed in today (and marked 'X' for identification) on

Defendant Nos. 1 to 12 returnable on 10 th January, 2023. If for any

reason, all the Defendants are not served as directed by this Order, the

decree Holder is at liberty to apply to this Court for substituted service.

6. Place the above matter on board for directions on 10 th

January, 2023.

7. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

                                        ( B. P. COLABAWALLA, J. )

Laxmi                                                            page 3 of 3