Bombay High Court
Harishree Enterprises vs Vikas Housing Ltd. And 3 Ors on 13 January, 2023
Bench: R. I. Chagla
16.IALNo.217682022(O).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 21768 OF 2022
IN
EXECUTION APPLICATION (L) NO. 19964 OF 2022
Harishree Enterprises ... Applicant
Versus
Vikas Housing Ltd. & Ors. ... Respondents
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Mr. Vishal Kanade i/b. Vishal Kanade, Advocate for the
Applicant.
Mr. J. P. Sen, Senior Advocate a/w. Mr. Naushad Engineer, Mrs.
Pooja Kane, Mr. Sharad Bansal, Counsels i/b. Yogesh Adhia,
Advocates for the Respondent No.1.
Mr. Dinyar Madaon, Senior Advocate a/w. Mr. Piyush Raheja a/
w. Mr. Krishkumar A. Jain i/b. Mr. Ritesh K. Jain, Advocate for
proposed Respondent Nos.4 to 7.
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CORAM : R.I. CHAGLA J
DATE : JANUARY 13, 2023
ORDER :
1. By the present interim application (L) No. 21768 of
2022, which has been fled in the Execution proceedings,
interim relief has been sought by way of ordering the
respondents/original plaintiffs from handing over 20,000
Sq.Ft. Built-up area comprising of residential fats in the
building known as "Jyoti Sukurti". Further consequential
reliefs have been sought with regard to the fats in the
residential building.
16.IALNo.217682022(O).doc
2. It is to be noted that by execution application fled on
2nd June 2022, execution of consent decree had been
sought. The consent decree had been passed by this Court
in Suit No. 1611 of 2000 fled by the respondents herein
being the Judgment Debtors against the applicant/Decree
Holder. The consent terms had been made part of the
decree of this Court by an order dated 3rd August 2000.
3. There is an impleadment application taken out
against Jyoti Builders which is a partnership frm and the
partners thereof which have been sought to be impleaded.
The impleadment application (L) No. 158 of 2023 has not
appeared on board.
4. Mr. Madon, learned Senior Counsel appearing for
partnership frm Jyoti Builders and the partners thereof
has sought time to oppose the impleadment application.
He has drawn reference to the affdavit in support of the
execution application wherein the applicant/Decree Holder
has admitted that the application is fled after 13 years
from the passing of the consent decree and hence notice is
required to be issued against original plaintiffs as
contemplated under Order XXI Rule 22 of Code of Civil
Procedure, 1908. Mr. Madon has submitted that the
Division Bench of this Court in Laxman Bala Surve & Ors.
v. M/s. Posh Builders, Bombay & Anr.1, considered order
XXI Rule 22 of the Code of Civil Procedure, 1908 to be
mandatory, as it affects the vital and valuable rights of the
parties against whom the execution is sought.
1 1996(2) Mh.L.J. 858.
16.IALNo.217682022(O).doc
5. Considering that the impleadment application is not
on board, it would be necessary to list the impleadment
application prior to granting interim relief as sought for.
6. Mr. Kanade, learned Counsel for applicant/Decree
Holder has submitted that the execution which is being
sought, necessarily would have been to be directed against
the parties against whom impleadment has been sought
viz. Jyoti Builders and its partners.
7. Accordingly the impleadment application (L) No. 158
of 2023 shall also be listed on 31 st January 2023. The
parties against whom the impleadment has been sought
shall fle their affdavit-in-reply to the impleadment
application on or before 25th January 2023. The applicant/
Decree Holders is at liberty to fle affdavit-in-rejoinder on
or before 30th January 2023.
8. Stand over to 31st January 2023 (High on Board).
[R.I. CHAGLA J.]
Digitally signed
by RAJU
DATTATRAYA
RAJU GAIKWAD
DATTATRAYA
Date:
GAIKWAD 2023.01.17
15:07:03
+0530
