Case Note & Summary
The applicant, Sukumar Bhoja Shetty, filed a Notice of Motion in Testamentary Suit No. 113 of 2017 seeking an injunction to restrain the defendant, Ganapal Bhoja Shetty, from proceeding with Execution Application No. 151 of 2018 pending before the Court Commissioner for Taking Accounts. The execution application was filed pursuant to a decree dated 6 May 2017 passed by the Bombay City Civil Court in L.C. Suit No. 5256 of 2007, which directed partition of a residential flat and taking of accounts of a lunch home. The applicant contended that the pendency of the testamentary suit should prevent the defendant from executing the decree. The court examined the submissions and found that the applicant did not demonstrate any legal basis for staying the execution proceedings merely because a testamentary suit was pending. The court noted that the testamentary suit and the civil suit were distinct proceedings and that the decree had been passed by a competent court. The court dismissed the Notice of Motion, holding that no case for injunction was made out.
Headnote
A) Civil Procedure - Injunction - Stay of Execution - Pendency of Testamentary Suit - The court considered whether the pendency of a testamentary suit justifies an injunction to stay execution proceedings of a partition decree passed by the City Civil Court. The court held that the testamentary suit does not automatically override or stay the execution of a decree passed by a competent civil court, and the applicant failed to make out a case for injunction. (Paras 1-11)
Issue of Consideration
Whether the pendency of a testamentary suit in the High Court warrants an injunction restraining the defendant from proceeding with execution of a decree for partition and accounts passed by the City Civil Court.
Final Decision
Notice of Motion No. 210 of 2019 is dismissed. No order as to costs.
Law Points
- Injunction
- Stay of execution
- Testamentary suit
- Partition decree
- Accounts
- Civil Procedure Code
- 1908
- Section 9
- Section 151
Case Details
2023 LawText (BOM) (06) 85
Notice of Motion No. 210 of 2019 in Testamentary Suit No. 113 of 2017
Ms. Smita Vora for Applicant/Plaintiff, Mr. Vishal Kanade a/w Mr. Satish Raut for Defendant/Respondent
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Nature of Litigation
Testamentary suit with a notice of motion seeking injunction to stay execution of a partition decree.
Remedy Sought
Plaintiff/Applicant sought an order restraining the Defendant from proceeding with Execution Application No. 151 of 2018 for partition of flat and taking accounts, pending disposal of the testamentary suit.
Filing Reason
Applicant contended that pendency of Testamentary Suit No. 113 of 2017 warranted stay of execution of the decree passed by Bombay City Civil Court in L.C. Suit No. 5256 of 2007.
Previous Decisions
Decree dated 06.05.2017 passed by Bombay City Civil Court in L.C. Suit No. 5256 of 2007 for partition of residential flat and taking accounts of Swagat Lunch Home.
Issues
Whether the pendency of a testamentary suit justifies an injunction to stay execution proceedings of a partition decree passed by a civil court.
Submissions/Arguments
Applicant argued that in view of the pending testamentary suit, the defendant should be restrained from proceeding with execution of the decree.
Defendant opposed the motion, contending that the testamentary suit does not affect the execution of a decree passed by a competent civil court.
Ratio Decidendi
The pendency of a testamentary suit does not automatically warrant a stay of execution of a decree for partition and accounts passed by a civil court. The applicant failed to make out a case for injunction.
Judgment Excerpts
This Notice of Motion is filed for seeking the following reliefs:- a. That pending the hearing and final disposal of the above Suit the Defendant abovenamed be restrained by Order and Direction of this Hon’ble Court not to proceed further with the proceedings in Execution Application No.151 of 2018 now pending before the Learned Court Commissioner for Taking Accounts, of this Hon’ble Court for partition of the residential flat No. 7, in Sapna Building, New Asha Nagar Corporative Housing Society Ltd., Road No.3 Chembur, Mumbai – 400 089, and for taking Accounts of Swagat Lunch Home, Shop No. 10 & 11 & Room No.68 in Amar Mahal Building Mumbai, as mentioned in the said Decree dated 6th May, 2017 passed by The Bombay City Civil Court in L.C. Suit No. 5256 of 2007 till the hearing and Final Disposal of the above Testamentary Suit.
Procedural History
The applicant filed Testamentary Suit No. 113 of 2017. Subsequently, the defendant filed Execution Application No. 151 of 2018 before the Court Commissioner for Taking Accounts to execute a decree dated 06.05.2017 passed by Bombay City Civil Court in L.C. Suit No. 5256 of 2007. The applicant then filed Notice of Motion No. 210 of 2019 seeking to restrain the execution proceedings.
Acts & Sections
- Code of Civil Procedure, 1908: Section 9, Section 151
