Kapil Bacharam Sharma (Since ... vs Haji Mohamed Rashid Jitekar ...
2022 Latest Caselaw 10818 Bom

Megha                                      3_IA_19100_2022.doc



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

             INTERIM APPLICATION NO.19100 OF 2022
                               IN
           CIVIL REVISION APPLICATION NO.282 OF 2021

Kapil Bacharam Sharma (deleted since
deceased) through his LRs.
1(A) Smt. Sheiladevi Kapil Sharma and
Ors.                                                    ...Applicants
                 Versus
Haji Mohamed Rashid Jitekar (deleted
since deceased) through his LRs.
1(a) Mohamed Ebrahim Jitekar and
Ors.                                             ...Respondents
                                 ...
Ms Anupama Shah with Ms Mitaali Shah i/b. Mr. Vaibhav Mehta and
Associates for the Applicant.
Mr. Reshant Shah i/b. M/s. Lex Conseiller for the Respondents.


                          CORAM: SMT. ANUJA PRABHUDESSAI, J.

DATED : 17th OCTOBER, 2022.

P.C. :-

1. By this application, the Applicants seek time to vacate the

premises and further seek stay of the execution and implementation of

the decree dated 16/03/2020 passed by the Appellate Bench of the

Small Causes Court in Appeal Nos.7 of 2013 and 8 of 2013 pending

hearing and final disposal of the Civil Revision Application.

Megha 3_IA_19100_2022.doc

2. The Respondent Nos.1 to 3, who are the owners of the suit

premises had filed a suit for eviction in the year 1998. The said suit

was decreed in the year 2013. The Appeals filed by the Applicants

before the Appellate Bench of the Small Causes Court were dismissed

on 16/03/2020. Since the Applicants herein did not vacate the

premises the Respondent No.1A filed execution application on

04/02/2021 before the Small Causes Court at Mumbai. It is only after

filing of this application that the Applicants, about 8 months from the

date of dismissal of the appeal, filed revision applications before this

Court being Civil Revision Application Nos.282 of 2021 and 210 of

2021 challenging the eviction decree dated 30/01/2013 and order of

the Appellate Court dated 16/03/2020.

3. During the pendency of the aforestated revision

applications warrant of attachment came to be issued on 29/03/2022.

The Applicants challenged the order of issuance of warrant of

attachment by filing Revision Application No.389 of 2022 before the

Appellate Bench of the Small Causes Court.

4. By order dated 26/07/2022 this Court (Coram : Nitin W.

Sambre, J.) dismissed both the revision applications filed by the

Applicants challenging the eviction decree. Even after dismissal of the

Megha 3_IA_19100_2022.doc

revision applications, the Applicants proceeded with the Revision

Application No.389 of 2022 filed before the Appellate Bench of Small

Causes Court challenging the issuance of warrant of attachment. The

said revision application came to be dismissed on 25/07/2022.

5. Though the Applicants have sought stay of execution and

implementation of the impugned judgment dated 30/01/2013,

pending hearing and disposal of the civil revision application, learned

counsel for the Applicants concedes that as on date no civil revision

application is pending before this Court, hence, there is no question of

staying the judgment in terms of prayer clause (b).

6. As regards grant of time to vacate the premises, it is seen

that the suit filed in the year 1998 was decreed in the year 2013. The

eviction order was confirmed by the Appellate Court and the revision

applications have been dismissed by this Court vide order dated

26/07/2022. No stay was granted in Revision Application Nos.210 of

2021 and 282 of 2021. Instead of vacating the premises, the

Applicants pursued the Revision Application No.389 of 2022 filed

before the appellate Bench of the Small Causes Court challenging the

issuance of warrant of attachment. It is only after dismissal of the said

revision application that the Applicants have approached this Court

Megha 3_IA_19100_2022.doc

once again seeking extension of time to vacate the premises.

7. The Applicants had sufficient time to make alternate

arrangement. Instead, the Applicants have made every possible

attempt to frustrate the decree. Considering the above facts and

circumstances I am inclined to grant three months time to the

Applicants to vacate the premises subject to condition that the

Applicants shall file an undertaking before this Court within one week

not to transfer, alienate or create third party rights in respect of said

premises during the period of these three months. The Applicants shall

also deposit before this Court an amount of Rs.1,00,000/, within a

period of four weeks which shall be forfeited in favour of the

Respondent in the event the Applicants fail to vacate the premises

within a period of three months.

8. The application stands disposed of in above terms.

9. The Respondent is at liberty to proceed with the execution

proceedings in the event the Applicants fail to deposit the amount of

Rs.1,00,000/- within the stipulated time.

                                                    (SMT. ANUJA PRABHUDESSAI, J.)

        Digitally signed
MEGHA   by MEGHA S
        PARAB
S       Date:
        2022.10.20
PARAB   17:39:10
        +0530