(Querist) 03 May 2011
This query is : Resolved
I am in process of filing an Execution Petition in regard to a Decree passed by City Civil Court, Mumbai for two flats of my late father. The decree is very clear that the two flats are to be sold out in open market to highest bidder with in one year and any other court can not grant stay or admit suit in regard to the decree without my consent. I now have following queries with the experts:
a) I will prey that the court appointed executor take vacant possesion of flats from the occupants. Can the occupants who also happened to be dedendants challange it in higher court and obtain stay ?
b) I will also prey for the min. base price to be fixed by me. What happens if at the time of public auction this price is not reached ? Can I wait for say 3 months and then again ask for an auction ?
c) Can I prey that the vacant flats taken in possesion by executor be rented out and the rent be shared by legal heirs as per agreed ratio till I do not get the desired sale price fixed by me?
d) What is the general cost of execution and can I claim it from defendants ?
Experts kindly give the clear cut responses as this is a critical issue for me.
Chanchal Nag Chowdhury
(Expert) 03 May 2011
a. Yes. b.Go for a re-auction. c.I am sure U have not understood the contents of the decree.The duty of the court ends with recovery & handing over vacant possession, unless there is any attachment of the flats.U cannot reduce the court to your Munshi. d.Not much, unless complications arise. Yes, U can pray for recovery of the costs.
(Querist) 04 May 2011
Respected experts, the decree is passed in regard to an order under the consent terms filed in the court and preys of petitioner which reads as under:
A) " The plantiff prays for permanant order and injuction of this honuarable court thereby restraining the defendants and / or any body claiming through or under them for in any manner whatsoever, encumbering, alienating, transfering, creating third party rights of any nature and / or parting with possesion of the suit flats without the consent of and approval of plaintiff"
B) " pending the final hearing and final disposal of this suit for interim orders injuction of this honurable court thereby restraining the defendants and / or anybody claiming through or under them for in any manner whatsoever, encumbering, alienating, transferring, creating third party rights of any nature and / or parting with the possesion of the suit flats"
Accordingly court passed an order in 2009 and no one has challenged it till now. The flats were to be sold with in 12 months but occupant defendants did not move ahead and created hurdles and so the execution petition is to be filed.
I am told that an order and a decree thereof passed under consent terms can not be stayed or challanged in higher court and so I feel that the opinion of expert is not correct. Pl. correct if it is wrong.