2024:BHC-AS:49448 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 14391 OF 2024

1. Jayanti Vikas Naik Age 76 years

2. Trupti Vikas Naik Age 72 years

3. Pankaj Vikas Naik Age 50 years (legal heirs of Late Narayan Laxman Naik being the original Judgment Debtor)

All residing at Sadaguru Vikas, Nale Road, Nallasopara West Taluka Vasai District Palghar ...Petitioners Vs.

1. Bibi Begum Fakir Saheb (Since deceased)

2. Sikandar Sarfuddin Raza (since deceased)

2/1 Tasneem Sikandar Raza Age 65 years

2/2 Fakruddin Sikandar Raza Age 62 years

2/1 and 2/2 residing at D/202, Olive Apartment Shriprastha Complex, Nallasopara West Taluka Vasai, District Palghar.

2/3 Sameer Sikandar Raza Age 50 years M/201, West Avenue CHSL, Station Road, Nalasopara West Taluka Vasai District Palghar

2/4 Birjish Shamim Tambe (Maiden Name : Birjoos Sikandar Raza)

Flat No. 203, Fortune tower, Sarjene Road, Mumbai. ...Respondents *****

Mr. Anil Dsouza a/w Mark Advocate for the Petitioners D’Britto i/by Ernest Tuscano *****

CORAM : S. M. MODAK, J.

DATE : 10^th DECEMBER 2024 ORAL JUDGMENT :-

1. Heard learned Advocate for the Petitioner-Judgment Debtor.

2. There is no dispute about eviction decree passed by the Court of CJJD Vasai in R.C.S. No. 166/76 on 29.09.1984, on page no. 20. There is no dispute that this decree is confirmed by the Appellate Court i.e. Joint District Judge, Thane in Civil Appeal No. 350/84 on

11.03.1986, on page no. 61.

3. There was an Execution application filed by the decree holder for getting possession. It is Regular Darkhast No. 30 of 1984. The reasons for pendency of this execution for long period is not known. In fact decree holder was expecting the execution of the decree, when the building in which the suit premises is situated is in existence. Whether it is fortune or misfortune of the decree holder to get possession of the room as it was standing prior to demolition, but he could not get possession of actual room. The building in which the suit premises was situated was demolished by Vasai Virar City Municipal Corporation on 29/12/2005. The building was declared as C—I category building. Even the petitioner pleads, the building was demolished by adhering the provisions of Maharashtra Municipal Corporation Act (para no. 4.8). As the building is demolished, the suit premise is also demolished, as such the suit premise, no more exists.

4. On this background, the decree holder filed two applications for issuance of possession warrant one under the provisions of Order XXI Rule 35 (this was withdrawn) and another under Rule 36 of the Civil Procedure Code.

5. Still the judgment debtor had a hope that the decree cannot be executed. The judgment debtor opposed for issuance of the warrant. However, the executing Court as per order dated 26.02.2024 has issued possession warrant for giving symbolic possession to the decree holder. This warrant was implemented and there is report of the bailiffs. On page no.79, typed copy is there. The serving officer noted how the possession warrant got executed. He completed the formalities as follows:-

a) He read the possession warrant for the information of the Public.

b) The report mentions the judgment debtor was not found at the spot. The serving officer found cement foundation and compound. He has also pasted the warrant at conspicuous place so that general public may view it. That is how the bailiff has mentioned that decree holder got possession of the premises.

Submissions

6. Learned Advocate has invited my attention to the provisions of Order 21 Rules 35 and 36 of the Civil Procedure Code. According to him, the executing Court was wrong in issuing the possession warrant. The bailiff was also wrong in reporting that the possession warrant is executed.

Provisions of Order XXI Rules 35 and 36

7. With his assistance, I have read the provisions of Order 21 Rules

35 and 36 of the Civil Procedure Code. They are as follows:-

(I) Rule 35 - talks about the execution of the decree for possessio