Final Order 1

Order Details: Other
Pdf Text: ORDER ..1.. MA NO.65/2019
MHCC010076822019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
MISC. APPLICATION NO. 65 OF 2019
IN
S.C.SUIT NO.6811 OF 2005 (Disposed of)
(HIGH COURT SUIT NO. 2285 OF 2005)
Rafat Bano Mainuddin Shaikh and Ors. …Applicants.
IN THE MATTER BETWEEN.
Hakimuddin Tahiruddin Shaikh. ...Plaintiff.
VERSUS
Mainuddin Tahiruddin Shaikh and Ors. … Defendants
Advocates
Afroz Siddiqui for applicants.
None for plaintiffs.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 2nd September 2021.
ORAL ORDER
Present application has been preferred by legal representatives
of defendant no.1 for giving direction to the Court Receiver, High Court
Bombay to handover possession of the suit property ie., Shop No.11,
Nair Cottage, A/2, Behind Building No.E, Ansa Industrial Estate, Saki
Vihar Road, Mumbai 400 072. Heard advocate for applicants. Perused
the record.
-- 1 of 4 --
ORDER ..2.. MA NO.65/2019
2. Suit was originally filed before the Hon'ble High Court for
partition. Defendants are brothers and sisters of the plaintiff. Vide order
dated 25.07.2006 in Notice of Motion No.2188/2006, the Hon'ble
Bombay High Court appointed the Court Receiver. Accordingly on
10.02.2006, the Court receiver taken symbolic possession from
defendant no.1 and put lock on the suit premises. Then the suit was
transferred to this Court in the year 2012. This Court on 01.08.2015,
dismissed the suit for want of prosecution, proceedings was closed and
order of the Court Receiver was cancelled after appeal period.
3. Applicants are legal heirs of defendant no.1. Contention of
applicants is that during pendency of the suit, plaintiff and defendant
no.1 to 3 expired. Legal heirs of the parties mutually settled the dispute.
Hence nobody proceeded with the suit and no appeal is preferred
against the order of dismissal of the suit. Hence applicants applied to
office of the Court Receiver and requested for possession of the suit
property but the Court receiver refused to handover possession and
asked to take order of this Court for discharging the Court receiver from
the case. Under the above circumstances, applicants filed the present
application.
4. Legal heirs of plaintiff appeared before the Court and given no
objection in writing to handover possession of the suit premises to
applicants.
5. Court receiver filed his reply (Exh.2) and sought necessary
directions as follows :-
(a) The Court Receiver be discharged without passing accounts in the
matter,
-- 2 of 4 --
ORDER ..3.. MA NO.65/2019
(b) To whom the Court Receiver should handover the possession of the
suit property,
(c) From whom the Court Receiver should recover costs, charges and
expenses of the Court Receiver and
(d) Any other directions the Hon'ble Court deems fit and proper.
6. It is not in dispute that the Court Receiver taken possession of
the suit property from defendant no.1. Suit is dismissed for want of
prosecution. Parties have not preferred appeal against the dismissal
order. Order of Court Receiver was cancelled after appeal period
without settling legal dues of the Court receiver. Suit property is in
possession of the Court Receiver. Applicants are ready to bear charges of
the Court Receiver. Under the circumstances, application is liable to be
allowed in terms of following order.
ORDER
1. Application No.65 of 2019 is allowed.
2. Applicants shall pay the charges/dues of the Court Receiver.
3. After payment of the charges/dues as above, the Court Receiver
is directed to handover possession of the suit premises to
applicants and the Court Receiver stands discharged from the
case without passing accounts in the matter.
4. Application No. 65 of 2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 02.09.2021
Typed on : 02.09.2021
HHJ signed on : 02.09.2021
-- 3 of 4 --
ORDER ..4.. MA NO.65/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 02.09.2021 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
02.09.2021
JUDGMENT/ORDER signed by P.O.
on
02.09.2021
JUDGMENT/ORDER uploaded on 02.09.2021
-- 4 of 4 --