Bombay High Court
Sherali Khan Mohd. Manekia And Others vs State Of Maharashtra And Others on 14 January, 2013
Author: S.C. Dharmadhikari
Bench: S.C.Dharmadhikari
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COURT RECEIVER'S REPORT NO.25 OF 2007
WITH
ADDITIONAL REPORT NO.383 OF 2012
IN
APPEAL FROM ORDER NO.221 OF 1980
IN
C.A. NO.11569 OF 1980
Sherali Khan Mohd. Manekia and others. ..Appellants
-Versus-
State of Maharashtra and others. ..Respondents
.............
Mr.S.U.Kamdar, Senior Advocate a/w Punita Shah i/by M/s Bilawala &
Company, for the Appellants.
Mr.Shishir Joshi a/w Mr.Vachan Bodake i/by M/s Chitnis Vaithy &
Company, for the Intervenor.
Mr.R.S.Apte, Senior Advocate a/w Mr.M.V.Limaye, for the Respondent
No.10.
............
CORAM : S.C.DHARMADHIKARI, J.
Reserved on : 05th December, 2012.
Pronounced on : 14th January, 2013.
Judgment:
1 The Court Receiver's report and additional report are both placed before me in the following facts and circumstances.
2 The Appellants, in this Appeal from Order, had challenged the judgment and order dated 03.05.1980 passed by the learned Civil ::: Downloaded on - 09/06/2013 19:33:55 ::: *2* crr.25.07.ao.221.80.sxw Judge Senior Division, Thane in Special Civil Suit No.37/1980 rejecting an application for appointment of the Court Receiver.
3 By an interim order dated 22.07.1980 passed by this Court, the Court Receiver, High Court, Bombay was appointed as a Receiver on the suit properties consisting of land survey No.34/1 admeasuring 36 Gunthas and Survey No.35/3 admeasuring 1 Acre and 8 ½ Gunthas situate at Panchpakhadi District Thane and this Court further directed the Court Receiver to immediately take possession of the suit property. It was provided in the said order that all the persons who were present at that time in actual possession of any part of the suit property either land or structure should continue to remain in possession of the same and further directed the Court Receiver to collect the rent/ compensation from all the persons in actual possession, after verifying from them their present rights to remain in possession and the Court Receiver was further directed to take suitable direction from the Court in this behalf. Annexure-A to the Report is a copy of the order dated 22.07.1980.
4 In pursuance of the aforesaid order, the representative of the Court Receiver took possession of the said suit property on 23.07.1980 and had submitted his report in that behalf on 25.07.1980 to the Court ::: Downloaded on - 09/06/2013 19:33:55 ::: *3* crr.25.07.ao.221.80.sxw Receiver. Annexure-B to the Report are copies of reports dated 23.07.1980 and 25.07.1980.
5 It is stated that the Court Receiver's office has received a letter dated 20.03.1998 from Mrs.G.D.Nadodwalla, Architect appointed in the matter inter alia stating therein that after inspecting the said property it was found that the encroachment and unauthorized development are executed on site, and the report of the same is enclosed with the said letter. Annexure C to the Report is a copy of the letter dated 20.03.1998.
6 It is stated that in the meeting of parties to the suit held before the Court Receiver on 18.06.2003, the letter dated 03.12.2002 received by the office of the Court Receiver from the Plaintiffs was considered and it was stated that there is encroachment on the said land.
In view of the above, it was decided to request the District Inspector of Land Records (DILR) to demarcate the suit property to enable the Court Receiver to give direction regarding construction of the boundary wall around the suit property as per the request made by the Advocate for the Plaintiffs. The Plaintiffs were directed to pay the necessary charges of DILR and in the said meeting it was made clear that no correspondence will be entertained by the office of Court Receiver, if entered directly.
::: Downloaded on - 09/06/2013 19:33:55 :::*4* crr.25.07.ao.221.80.sxw Annexure-D is the copy of the minutes of meeting dated 18.06.2003.
7 By a letter dated 24.06.2003 the office of Court Receiver has written to the DILR for demarcating the suit property for ascertaining encroachment which is made on the suit property as per the report submitted by the representative of the Court Receiver. Annexure-E to the Report is a copy of the letter dated 24.06.2003.
8It is stated that the DILR issued the notice dated 07.11.2003 fixing the date for demarcating/survey of the suit property. The representative of the Court Receiver visited the suit property as per the appointment fixed by the DILR and in the presence of the representative of DILR and others, the suit property was surveyed and the Court Receiver's representative submitted his report dated 16.12.2003.
Annexure-F is a copy of the said site report.
9 It is stated that in the meeting of parties to the suit held before the Court Receiver on 06.01.2004, an appointment was fixed for verifying the factual position at the suit site as the office of Court Receiver has received a letter dated 10.12.2003 from the Advocate for Appellants inter-alia stating therein that the son of Respondent No.10 has allowed ::: Downloaded on - 09/06/2013 19:33:55 ::: *5* crr.25.07.ao.221.80.sxw some persons unauthorizedly and they have occupied some portion of the land bearing Survey No.34/1 (part). Annexure-G to the Report is a copy of minutes of meeting dated 06.01.2004.
10 The representative of the Court Receiver submitted his report dated 21.01.2004 in connection with his visit to the suit site as per the appointment fixed in the aforesaid meeting and in the said report he has stated that there is unauthorized construction standing on the suit property. Annexure-H is a copy of the said report dated 21.01.2004.
11 Thereafter, the office of Court Receiver vide its letter dated 15.03.2004 to the DILR, Thane requested to submit their report in connection of the demarcation/ survey carried out by them immediately.
12 Thereafter, the office of Court Receiver vide its letter dated 26.04.2005 addressed to the Senior Inspector of Police, Thane requested them to depute two police constables at site on 27.04.2005 at the time of appointment to carry out the demarcation work at the cost of the Plaintiffs. The representative of Court Receiver submitted his report dated 02.05.2005 in connection with the appointment fixed and stated in the said report that M/s Sterling Motors and Maria Supermarket (earlier ::: Downloaded on - 09/06/2013 19:33:55 ::: *6* crr.25.07.ao.221.80.sxw known as "Anthony Garage") had encroached on the suit property partly.
Annexure I is a copy of the said report dated 02.05.2005.
13 It is further stated that vide a letter dated 14.06.2005 the office of Court Receiver has requested the DILR to give the survey/ demarcation report which they have carried out earlier so as to ascertain encroachments, if any, at the suit property. Annexure-J is a copy of the letter dated 14.06.2005.
14 In the meeting dated 07.07.2005 with parties to the suit, the Advocate for Appellants requested to appoint Ms.G.D.Nadodwalla, Architect for ascertaining the factual position of encroachment at the suit property at their own costs. Annexure-K is a copy of the minutes of meeting dated 07.07.2005.
15 It is stated that thereafter by a letter dated 12.07.2005, the Advocate for Appellants (Original Plaintiffs) has forwarded a copy of the letter dated 08.07.2005 of DILR wherein it was mentioned that the Constituted Attorney of the Appellants has taken the photocopy of the map of demarcation of the property from the DILR office on 27.06.2005 and hence the office of the DILR will not submit a copy of the report to ::: Downloaded on - 09/06/2013 19:33:55 ::: *7* crr.25.07.ao.221.80.sxw the Court Receiver and the Advocate for Appellants has submitted the said copy of the map to the office of Court Receiver and had submitted another letter dated 12.07.2005 for handing over possession to the Appellants.
Annexure L is a copy of the letter dated 12.07.2005.
16 It is stated that by a letter dated 19.08.2005 the Advocate for Appellants had submitted the report dated 17.08.2005 of Ms.G.D.Nadodwalla, Architect appointed in the matter and according to the said report, M/s Maria Plaza has encroached upon the suit land as shown in the plan in blue colour wash and M/s Sterling Motors have encroached upon a part of the suit land as shown in the plan in brown colour wash and according to the Architect, the boundary wall should be constructed immediately between the suit land and the property occupied by or belonging to M/s Maria Plaza, to avoid any further illegal encroachment or illegal structure on the suit land. Annexure M to the Report is a copy of letter dated 19.08.2005.
17 In the meeting of parties to the suit held before the Court Receiver on 06.12.2005 the matter was discussed in detail and in the end it was decided to fix an appointment to handover the possession of the suit property bearing Survey No.34, Hissa No.1 and Survey No.35 Hissa ::: Downloaded on - 09/06/2013 19:33:55 ::: *8* crr.25.07.ao.221.80.sxw No.3 to the Appellants as per the order dated 22.12.2004 passed by the Division Bench of this Court by giving notice to all the parties. The issue regarding the encroachment made by M/s Maria Plaza was deferred till the report of the DILR was received by the office of Court Receiver and the parties were given liberty to record their say in writing by furnishing the copies of the same to each other. Annexure N is a copy of the minutes dated 06.12.2005 along with the order dated 22.12.2004 and subsequent order dated 07.03.2005 passed by the Honourable Supreme Court.
18 It is stated that by a letter dated 09.12.2005 the Taluka Inspector of Land Records (TILR) forwarded therewith a map of demarcation of the land and Hissa Form Nos.4 and 11 of the suit property and also letter dated 07.11.2003 along with the map of demarcation of the land dated 25.11.2003 and a copy of Panchanama. Annexure O is a copy of the letter dated 09.12.2005.
19 It is further stated that in the meeting of parties held before the Court Receiver on 17.01.2006, the office of Court Receiver was directed to give the copies of survey reports received from the TILR to the parties at their own costs and they were directed to record their say within one week from the date of the meeting so that the request of the ::: Downloaded on - 09/06/2013 19:33:55 ::: *9* crr.25.07.ao.221.80.sxw Appellants for handing over possession of the suit property as well as the prayer of the Respondent No.10 regarding demarcation will be considered at length on the next adjourned date of the meeting. Annexure-P is a copy of the minutes dated 17.01.2006.
20 It is stated that by a letter dated 17.12.2005 the office of Court Receiver fixed an appointment on 27.12.2005 as decided in the parties meeting for handing over possession of the suit property to the Appellants as per the order dated 22.12.2004. The representative of the Court Receiver submitted his report dated 27.01.2006 in the said report he stated that the appointment could not materialize as the representative of Appellants refused to take possession of the suit property as he wants the vacant possession of the same and the occupants refused to submit the documents as regards the structures standing on the suit property.
Annexure-Q to the Report is a copy of the said report dated 27.01.2006.
21 Thereafter, the office of Court Receiver has received a letter dated 28.02.2006 from Mr.Kamlakar Rane inter-alia stating therein that the TILR has not carried out the honest survey and it is not according to the official map. Annexure-R is a copy of the said letter dated 28.02.2006.
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22 It is further stated that the office of Court Receiver has
received a letter dated 28.03.2006 from the Advocate for Appellants inter alia requesting the Court Receiver to proceed to execute the Court's order for handing over possession and the report of the Architect specifically stated that the joint survey of the suit land was carried out in the presence of the representatives of the DILR. It was further stated that all the encroachers were present at the time of survey and nobody has taken objection at the time of survey. Thereafter, the Respondent No.10 had made allegation against the survey conducted by the TILR. Annexure-S is a copy of the said letter dated 28.03.2006.
23 It is stated that in the meeting of parties which was held before the Court Receiver on 14.06.2006, the Advocate for Appellants was directed to submit his submission. Accordingly, they submitted the submissions in which they have given the detailed description about the encroachment made by M/s Maria Plaza and Mr.Kamlakar Rane and further stated that they are encroaching on the portion of the land which is in possession of the Court Receiver. Annexure-T is a copy of the minutes of meeting dated 14.06.2006.
24 In such circumstances, the Court Receiver has sought the
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following directions:-
"(a) Whether the Court Receiver should handover the
possession of the suit property viz. Pachpakhadi, Thane to the Appellants as per the Court's order dated 22.12.2004 passed on the Writ Petition No.2293 of 1986 and First Appeal No.767/1998.
(b) What steps the Court Receiver should take in respect of encroachment on the suit property situate at Pachpakhadi, Thane and as requested in the site report dated 21.01.2004 Exhibit H hereto."
(c) Any other directions that this Hon'ble Court may deem fit proper to give in the matter."
25Thus, whole case is that there is encroachment and unauthorized development executed at site. In view of that the Court Receiver decided to request the District Inspector of Land Records (DILR) to demarcate the suit property to enable the Court Receiver to give direction regarding construction of the boundary wall around the property as per the request made by the Advocate for the original Plaintiffs. It appears that the Court Receiver moved the DILR for demarcating the suit property for ascertaining encroachment which has taken place thereon. Thereafter, the DILR issued the notice and the representative of the Court Receiver visited the suit property. In the presence of the representative of Court Receiver and that of the DILR and others, the suit property was surveyed and the Court Receiver's representative submitted his report dated 16.12.2003.
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26 The letter dated 10.12.2003 addressed by the Advocate for
Appellants inter-alia stating that the son of the Respondent No.10 has allowed some persons unauthorizedly and they have occupied some portion of the land bearing Survey No.34/1 (part), was received by the Court Receiver and thereafter, the suit site was visited. The Court Receiver's representative stated that there is unauthorized construction standing on the suit property. The DILR was requested to submit a report in connection with the demarcation/ survey carried out by them. It appears that M/s Sterling Motors and Maria Supermarket (earlier known as Antony Garage) had encroached the suit property partly. The Court Receiver, therefore, addressed a letter dated 14.06.2005 to the DILR, Thane to give survey/ demarcation report which they have carried out earlier so as to ascertain encroachment, if any, on the suit property. In the meanwhile, one Ms.G.D.Nadodwalla, Architect was approached by the Appellants through their Advocate for ascertaining the factual position of encroachment on the suit property and they incurred costs for visit of the said Architect and a report by her. Thereafter, a copy of the letter dated 08.07.2005 of DILR was forwarded by the Advocate for Appellants and it was stated that the Constituted Attorney of Appellants has taken photocopy of the Map of the suit property from the DILR's Office on 27.06.2005. In the meanwhile, the Appellants' Advocate submitted a ::: Downloaded on - 09/06/2013 19:33:55 ::: *13* crr.25.07.ao.221.80.sxw report of Architect which indicated that M/s Maria Plaza has encroached on the suit property and that letter was also forwarded to the Court Receiver.
27 That is how the Court Receiver decided that ultimate steps have to be taken to handover possession of the suit property bearing Survey No.34 Hissa-1 and Survey No.35 Hissa-3 to the Appellants as per the order dated 22.12.2004 passed by the Division Bench of this Court. It appears that the Appellants' representative refused to take possession of the suit property in pursuance of all this because the Appellants desire vacant possession of the same. The occupants on the property refused to submit documents as regard structures standing on the suit property.
28 One Kamlakar B. Rane alleged that honest and proper survey has not been carried out. In the meanwhile, the Court Receiver received the Appellants' request through their Advocate that the property should be handed over in terms of the Architect's report and survey of the DILR as that was made in presence of all encroachers. None had objected to the same survey. However, the Respondent No.10 to the Appeal had made allegations against the survey conducted by the DILR by his letter dated 28.03.2006.
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29 The controversy is that there is encroachment on the property
in possession of the Court Receiver and the suit having been decreed and which decree is now confirmed right up to the Honourable Supreme Court, the Court Receiver must ensure that physical possession of the property should be handed over by causing to remove all encroachments.
The Court Receiver is, therefore, seeking direction in that behalf by this report.
30In the additional report of the Court Receiver, what has been stated is that there are complaints received from M/s Bilawala & Company, Advocates for Appellants and in view thereof the property was visited and inspected and it was found that the possession board of the Court Receiver on the main entrance gate was removed and on the right hand side of the main entrance from the service road, the boundary wall of about 15 to 20 feet has been demolished and was required to be constructed. There was no boundary wall between the suit property and Maria Restaurant and even the boundary wall between Oswal Park and the suit property was broken. The report of Mr.Bipin C. Shah, Constituted Attorney of Appellants stated that the boundary wall between the suit property and Maria Restaurant should be reconstructed as per the demarcation map of the TILR, Thane. These events are mentioned in the ::: Downloaded on - 09/06/2013 19:33:55 ::: *15* crr.25.07.ao.221.80.sxw Additional Report of the Court Receiver, but equally the objection that the boundary between the suit property and Maria Restaurant should be on the same place where it was already in existence and this was the objection raised by M/s Chitnis Vaithy & Company, Advocates for the Intervenor M/s Maria Restaurant. They also alleged that the demolished wall was constructed by the office of Court Receiver somewhere in the year 1981 when the Court Receiver was appointed as a Receiver. The said wall was stated as boundary wall between Maria Restaurant and the suit property. Thus, the Court Receiver has found from the documents brought before him that the property in dispute is in possession of the Court Receiver for more than 32 years and in the absence of the proper fencing to the property, it is prone to some or the other encroachment on it. It is, therefore, necessary to appoint security guards so also erect fencing surrounding the suit property so that encroachment in future be avoided.
Since parties have not made any arrangement for security and safeguarding the property, what has been pointed out by the Court Receiver is that the property is about 46 Gunthas and it can be easily fenced.
31 Mr.Kamdar, learned Senior Counsel appearing for the Appellants, therefore, submits that the additional report of the Court ::: Downloaded on - 09/06/2013 19:33:55 ::: *16* crr.25.07.ao.221.80.sxw Receiver does not take into account that the Appellants several times approached him and requested him to take steps at their costs, charges and expenses so that fruits of the decree for possession in favour of the Appellants can be enjoyed, without any encroachment.
32 Mr.Kamdar submits that once the property is custodia-legis, then, it is the bounden duty of the Court Receiver to take requisite steps to preserve and safeguard it till the litigation comes to an end. Mr.Kamdar submits that the Receiver was appointed by this Court way back on 22.07.1980. Thereafter, the Appeal from Order was heard finally on 10.03.1983 and while allowing it, what this Court directed is that the order passed by the Trial Court refusing to appoint the Court Receiver in respect of the suit property is set aside. The Court Receiver appointed by this Court shall continue as a Receiver of the suit property during the pendency of the suit. However, upon a suitable application made by the original Plaintiffs, the Trial Court shall be entitled to appoint some other person amenable to its control as a Receiver of the suit property. If such an application is made by the Plaintiffs and the Trial Court appoints an independent Receiver amenable to its own control, then, the Plaintiffs can move this Court for cancellation of appointment of the Receiver appointed by this Court and directing him to handover possession of the suit ::: Downloaded on - 09/06/2013 19:33:55 ::: *17* crr.25.07.ao.221.80.sxw property to the Receiver appointed by the Trial Court. This Court made it clear that until the new Receiver is appointed by the Trial Court and until an order is passed by this Court discharging the present Court Receiver, the present Court Receiver shall continue to remain in possession of the suit property and perform all functions as Receiver of the property. It was also made it clear that until the Court Receiver is discharged, he shall continue to take instructions as regards the management of possession of the suit property from this Court notwithstanding the fact that the Appeal stands disposed of. The order clarifies notwithstanding the Appeal stands disposed of, the Receiver is not discharged in terms of this clear and specific order.
33 Mr.Kamdar submits that the Court Receiver is not discharged but continues as such unless his office is vacated or he is discharged by the order of the Court. In this case, there is no order discharging the Court Receiver. The Court Receiver has, thus, continued. Mr.Kamdar has invited my attention to the Decree passed by the Trial Court on 04.02.1988. He submits that this decree which has been passed by the Trial Court in Special Civil Suit No.37/1980 decrees the suit for possession of the immovable property against the original Defendant Nos.1 to 3, 7, 8, 10, 11, 13, 15 and 21 to 24 jointly and severally. The ::: Downloaded on - 09/06/2013 19:33:55 ::: *18* crr.25.07.ao.221.80.sxw vacant and peaceful possession of the suit property has to be delivered to the original Plaintiffs. There is clear direction in that behalf. It is evident from the Decree that the Plaintiffs did not move the Trial Court for appointment of the Receiver of the suit property in terms of the liberty given in paragraph 24 of the judgment of this Court in Appeal from Order No.221/1980 decided on 10.03.1983. Therefore, the Appellants have to move this Court for direction for taking possession of the suit property from the Court Receiver appointed by this Court. If that is what the Decree directs and which decree stands confirmed in First Appeal No.767/1988 decided on 22.12.2004, then, it is for this Court to ensure that the Court Receiver takes requisite steps and hands over possession of the immovable property which is subject matter of the Decree after removing all encroachments thereon. Mr.Kamdar has taken pains to point out as to how there has been encroachment on the suit property and in that behalf he relied on compilation of documents filed and equally the affidavit of Mr.Bipin Shah, Constituted Attorney of Appellants.
34 Mr.Kamdar has relied upon following decisions in support of his contention that the Court Receiver is not discharged unless a specific order is passed by the Court to that effect:-
(1) The Oral Order dated 28th July, 1998 passed by this Court in Notice of Motion No.2310/1997 in Suit ::: Downloaded on - 09/06/2013 19:33:55 ::: *19* crr.25.07.ao.221.80.sxw No.3221/1984.
Atul D. Sohni and another. v/s B.M.Choksey and others.
(2) The Oral Order dated 15th & 16th February, 1999 passed by a Division Bench of this Court in Appeal No.900/1998 in Notice of Motion No.2310/1997 in Suit No.3221/1984.
Kailash Prasad Agarwal v/s Atul D. Sohni and others.
(3) The judgment of this Court reported in 2005(5) Bom.
C.R. 213.
Chamber Summons No.204/2005 in Suit No.535/2000.
ICICI Ltd. v/s Kothri Industrial Corporation Ltd..
(4) The Order dated 06th July, 2005 passed by a Division Bench of this Court in Appeal No.550/2005 in Chamber Summons No.204/2005 in Suit No.535/2000.
Kothari Industrial Corporation Ltd. v/s ICICI Limited.
35 On the other hand, Mr.Apte, learned Senior Counsel appearing for the contesting Respondents and particularly the Respondent No.10 Kamalakar Rane, submits that this report or seeking direction to the Court Receiver is not the remedy of Appellants. There is a Decree passed in their favour for possession of the immovable property. They can take steps to execute and enforce that decree in accordance with law.
They can very well approach the Executing Court and point out that there are encroachments on the suit property and which encroachments must be removed and vacant and peaceful possession thereof be handed over to them. It is then for the Executing Court to make such inquiries and ::: Downloaded on - 09/06/2013 19:33:55 ::: *20* crr.25.07.ao.221.80.sxw materials placed in the present reports in this Court can be taken assistance of by the said Executing Court in that behalf and it may take such other steps as are permissible in law. However, in the disposed of Appeal and that too way back in the year 1983 and by completely forgetting that thereafter the suit has been decreed and the decree has been put in execution, these reports are being pursued and reliefs are sought on that basis. This Court cannot now issue any direction and particularly when there are serious disputes and issues raised by parties.
Now, nothing remains before this Court for adjudication and for decision.
36 Without prejudice to the above, Mr.Apte submits that right from inception, the Respondent No.10 has raised an objection that the property in question needs to be identified and demarcated, but the Receiver has not taken that into consideration. The Receiver ignoring these objections has submitted a report bearing No.25/2007. Mr.Apte submits that the Receiver was appointed of the suit property consisting of land Survey No.34/1 admeasuring 36 Gunthas and Survey No.35/3 admeasuring 1 Acres and 8.5 Gunthas. The Receiver took possession of Survey No.34/1 admeasuring 36 Gunthas. As far as Survey No.35/3 is concerned, the Receiver has taken possession of 2 Acres and 23.5 Gunthas when in fact the suit property is admeasuring 1 Acre and 8.5 Gunthas.
::: Downloaded on - 09/06/2013 19:33:55 :::*21* crr.25.07.ao.221.80.sxw The report submitted by S.B.Nandodwala & Sons, who were appointed by the Receiver to survey the suit property, indicates that the property in possession of the Court Receiver in respect of Survey No.35/3 was 10,470.50 sq.meters, when infact the suit property is 4906 sq.meters.
37 Mr.Apte submits that after the Decree was passed, an Appeal was preferred in this Court being First Appeal No.767/1988 and which Appeal has been dismissed on 22.12.2004. Equally, a Special Leave Petition preferred by the Respondent No.10 was also dismissed by the Honourable Supreme Court in the year 2006. Thus, right from the year 2006, the Respondent No.10 has raised this objection and particularly regarding identification of the suit property.
38 It is denied that any encroachment was made by the Respondent No.10 and infact the Court Receiver has got the property surveyed. There are several allegations made in the affidavit filed by the Respondent No.10 on 23.07.2012 and therefore, this is not a case where the Court should take any further cognizance of the Appellants' grievance.
Once the decree is put in execution and the execution proceedings are pending, then, the Appellants cannot claim that the property is custodia legis. Assuming without admitting that to be the position, still this Court ::: Downloaded on - 09/06/2013 19:33:55 ::: *22* crr.25.07.ao.221.80.sxw cannot pass any order on the Receiver's reports when it is not the Executing Court and when nothing is pending before it. In such circumstances, Mr.Apte, relying upon earlier documents including the reports, submitted that the present proceedings be closed.
39 The Appellants are the original Plaintiffs whereas the private Respondents are the original Defendants. A little background is needed to appreciate that when the Appeal from Order was filed in this Court together with the Civil Application, the suit was pending. The Appeal was directed against the order passed by the Trial Court refusing to appoint a Receiver of the suit property. That property was subject matter of the Civil Suit. The learned Single Judge, thereafter, delivered a judgment on 10.03.1983 by which this Appeal from Order and the Civil Application were disposed of. Thus, it is not disputed that the Appeal from Order is disposed of. It was allowed in terms of the order of the learned Single Judge. The learned Single Judge appointed the Court Receiver and he was to continue as a Receiver of the suit property during the pendency of the suit. Liberty was given to substitute the Court Receiver appointed by this Court by making appropriate application to the Trial Court, but it is not disputed that such an application was not made. Therefore, the Receiver appointed by this Court continued and he has continued till the pendency ::: Downloaded on - 09/06/2013 19:33:55 ::: *23* crr.25.07.ao.221.80.sxw of the suit.
40 The suit being Special Civil Suit No.37/1980 was admittedly a suit filed for specific performance of contracts dated 15.06.1964 and 27.06.1964 executed by the original Defendant Nos.1 to 3 in favour of the Plaintiffs and the directions were sought to these Defendants to issue a sale certificate in respect of the suit land in favour of the Plaintiffs and for delivery of vacant possession of the suit land which is more particularly described in the plaint. Further relief was a direction asking the Defendant Nos.1 to 3 to remove the Defendant Nos.4 to 24 from the suit property who had allegedly encroached on some portions thereof, as also, to seek their eviction there from.
41 After the Appeal from Order has been disposed of by this Court on 10.03.1983, the suit itself was disposed of on 04.02.1988.
Therefore, the Trial Court gave liberty to the Plaintiffs to move this Court for directions for taking possession of the suit property from the Court Receiver appointed by this Court. It is this liberty which has been availed of, according to Mr.Kamdar, Senior Counsel appearing for the original Plaintiffs and persons claiming through them. Therefore, he submits that it is this Court alone which can issue suitable directions so as to have the ::: Downloaded on - 09/06/2013 19:33:55 ::: *24* crr.25.07.ao.221.80.sxw encroachers removed. Equally, he does not dispute that the original Plaintiffs/ Decree Holders have moved the Executing Court by way of an Execution Application.
42 The checkered history of the matter is that after the suit was decreed on 04.02.1988, there was First Appeal preferred being First Appeal No.767/1988 which was disposed of after nearly 16 years on 22.12.2004. The Division Bench of this Court has dismissed the First Appeal and thereafter, even the Special Leave Petition has been dismissed by the Honourable Supreme Court vide order dated 19.02.2007. In such circumstances, to my mind, it would not be proper for this Court now to issue any direction.
43 The directions cannot be issued only on assumption that this Court was monitoring the matter for all these years irrespective of disposal of the Appeal from Order. That may be the understanding of parties, but before me nothing has been placed which would enable me to hold that from 1983 till this report was filed in the year 2007, this Court had issued any directions or had passed any orders indicative of control over the Court Receiver. In fact the Court Receiver's reports and paragraphs of which have been reproduced by me hereinabove, would ::: Downloaded on - 09/06/2013 19:33:55 ::: *25* crr.25.07.ao.221.80.sxw indicate that it is only the correspondence and meetings of parties with the Court Receiver or his representative that have been referred to. The Court Receiver seems to be now for the first time informing the Court of such meetings and contents of letters. He has not sought any direction for all these decades and because the parties were engaging and involving him in correspondence, does not mean that the Court has in any way continued him. If it is the understanding of parties that the Court Receiver continues, then, that cannot be proved only by this correspondence. The Court Receiver, High Court Bombay, on account of his own limitation and lack of understanding may be under an impression that he continues as a Receiver of the immovable property despite disposal of the Appeal from Order, main suit, First Appeal and thereafter, the proceedings before the Honourable Supreme Court. If that is the understanding which he has given to parties or parties have given to him and he entertains correspondence and holds meetings, by itself and without anything more cannot assist the Plaintiffs/ Decree Holders. The Court cannot issue any directions on such reports and filed belatedly. In fact the Plaintiffs/ Decree Holders understood that they have to proceed to execute and enforce the Decree for possession in their favour by adopting appropriate proceedings. Even then they have continued the correspondence and persuaded the Court Receiver to file reports before this Court, does not ::: Downloaded on - 09/06/2013 19:33:55 ::: *26* crr.25.07.ao.221.80.sxw mean that the Court is obliged to take cognizance of the same.
44 To my mind, these are thoroughly misconceived proceedings and the remedy of the Plaintiffs/ Decree Holders lies elsewhere. They cannot insist on the Court passing orders only because of continued correspondence and meetings with the Court Receiver. The Court has not authorized him nor has he sought permission of the Court authorizing him in any manner to continue in possession of the suit property. If parties and equally the Court Receiver do not deem it fit to approach this Court for all these years and seek its intervention or interference, then, all the more they cannot in the exercise that is now carried out, insist on directions to be given to the Court Receiver. Equally, the Court Receiver cannot pray for any directions. If the Court Receiver continues to be in possession and wants to handover possession to the parties claiming under the Decree, then, he is at liberty to move the Executing Court. If the Plaintiffs/ Decree Holders desire any directions being given to the Court Receiver, then, it is for them to seek appropriate reliefs and directions in the pending execution proceedings. It is open to the Court Receiver or parties to do so. This Court after the disposal of the Appeal from Order has nothing before it which could be said to be pending. The First Appeal is disposed of long time back. The Reports are filed in proceedings which ::: Downloaded on - 09/06/2013 19:33:55 ::: *27* crr.25.07.ao.221.80.sxw are no longer pending, but are disposed of finally. Neither the parties nor the Court Receiver sought any further directions from the Court.
45 As far as this Court is concerned, it cannot accept reports and the claim therein that the Court Receiver continues and is not discharged.
From the record it is apparent that the Appeal from Order was disposed of on 10.03.1983. In that order disposing of the Appeal from Order, it has been clarified and at more places than one, that the Court Receiver firstly and while being appointed was to take possession and carry out directions in the order passed on Civil Application being Civil Application No.1569/1980 dated 22.07.1980. The Receiver was directed to take suitable directions from the Court if presented with any difficulty in implementing the order and directions. Thereafter, this Appeal from Order which was part heard before the learned Single Judge came to be disposed of finally and while disposing it of finally the Court allowed the Appeal. The Court Receiver appointed by this Court in terms of the order on the Civil Application was to continue as a Receiver of the suit property during the pendency of the suit. In these circumstances one cannot interpret this order to mean that the Receiver continues even after the litigation is finally disposed of. He may assume that he continues to be in possession, but on that basis alone and in the teeth of this clear order, it is ::: Downloaded on - 09/06/2013 19:33:55 ::: *28* crr.25.07.ao.221.80.sxw difficult to hold that he is not discharged. That he does not move or parties do not move the Court seeking discharge, does not mean that he continues as a Receiver of the suit property. That apart, even after the Decree specifying that the parties must move the Receiver or this Court for taking direction for taking possession from the Court Receiver appointed by this Court, they did not do so, but chose to remain silent till the First Appeal and equally the Supreme Court proceedings were disposed of. They filed the execution proceedings and never moved the Court to take possession of the property on "as is where is" basis. Now, they desire through the Court Receiver to have the so called encroachment removed from the site so that they obtain clear and vacant possession of the immovable property which is subject matter of the Decree. In that endeavour they continued to engage the Court Receiver in fruitless and worthless correspondence knowing fully that their remedy to have impediments or obstructions removed, lies elsewhere. If they are armed with a Decree for possession of the immovable property but in the meanwhile there is encroachment on the immovable property which is subject matter of the Decree, to have the encroachment and obstacles removed, then, they must seek assistance and take recourse to law. The Court Receiver or his office cannot be requested now to take cognizance of their grievance. Therefore, in the teeth of the order passed on ::: Downloaded on - 09/06/2013 19:33:55 ::: *29* crr.25.07.ao.221.80.sxw 10.03.1983 and even otherwise finding that mere continued possession of the Court Receiver does not mean that the Court can pass any direction or issue orders, that these proceedings need not be kept pending and will have to be disposed of. This Court cannot, in the garb of taking cognizance of the Court Receiver's reports, usurp the authority or powers of the Executing Court in terms of the Order XXI of the Code of Civil Procedure, 1908. If those powers are conferred solely in the Executing Courts, then, in the garb of taking cognizance of the Court Receiver's report this Court cannot override the statutory scheme as envisaged and carved by Order XXI Rules 97 to 101 of the Code of Civil Procedure, 1908.
Equally, the Receiver's report cannot be treated as substantive proceedings. By their very nature, by such reports the Receiver seeks directions from the Court so as to fulfill the purpose of his appointment.
To enable him to exercise his powers effectively and fully, the Receiver seeks the Court's assistance. That is how the scheme of Order XL Rule 1(a) to (d) and Order XL Rule 2 of the Code of Civil Procedure, 1908 is understood. The Court appoints a Receiver and confers in him the powers of management and administration of the property. Beyond this, the Court Receiver's requests and reports do not partake the character of any independent proceedings wherein substantive reliefs can be granted after full adjudication of the respective claims and versions regarding right, ::: Downloaded on - 09/06/2013 19:33:55 ::: *30* crr.25.07.ao.221.80.sxw title and interest in property. Therefore, looked at anyway and finding that whether the property is indeed encroached upon or not, is by itself a substantive and independent issue which would require parties to establish and prove their rival versions, then, all the more these Court Receiver's reports are not the remedy or solution to the Decree Holders' problems.
46 Mr.Kamdar has relied upon several judgments to contend that the Court Receiver continues in terms of the appointment made by the Court until he is discharged and merely because the proceedings have come to an end, does not mean that he stands discharged automatically.
He will have to be discharged by the Court which appointed him or he continues, is his submission based on several judgments. However, that will have to be seen in the context of the facts emerging from record of these judgments. In the first case, namely, Atul D. Sohni and another v/s B.M.Choksey & others and the Court Receiver and Kailash Prasad Agarwal, in Notice of Motion No.2310/1997 in Suit No.3321/1984, decided on 28.07.1998, the Court was dealing with the Applicant's Notice of Motion seeking modification or setting aside the order passed on the report of the Court Receiver. That was an order specifically made against the said Applicants when they were absent and they were acting ::: Downloaded on - 09/06/2013 19:33:55 ::: *31* crr.25.07.ao.221.80.sxw highhandedly and carrying out unauthorized construction and giving threats to the Court Receiver and therefore, they were directed to be removed and evicted from the suit premises with the help of Police, if necessary. It was clarified that if the Applicant was to make any representation that will be heard only after he hands over possession to the Court Receiver.
47 In the course of that, an argument was canvassed that the Court Receiver stood discharged w.e.f.. 26.11.1992 and therefore, there was no Receiver in respect of the property in occupation of the Applicant.
48 The Court noted as a matter of fact that the issue is whether the Court Receiver stands discharged from the date an order is passed by the Court in that regard or whether he continues in his office till he discharges and fulfills all the incidental obligations that are cast upon him by virtue of his appointment and before he renders account to the Commissioner of Accounts.
49 Therefore, the record of that case was perused by the learned Judge in its entirety and he found that the order was passed discharging the Court Receiver on 26.11.1992 and at the same time continuing him ::: Downloaded on - 09/06/2013 19:33:55 ::: *32* crr.25.07.ao.221.80.sxw for certain period to enable parties to file the Appeal from the said order.
The Appeals were filed, but same were dismissed by a Division Bench and the Special Leave Petition which was filed before the Supreme Court also came to be dismissed on 27.07.1993. The issue was whether the Court Receiver became functus officio right from the date when the order was passed on 26.11.1992 discharging the Court Receiver or whether the Court Receiver continued to be in charge of the property on account of pendency of his reports before the Court and for the other reasons pointed out by the counsel for the Plaintiffs and Defendant No.2 therein.
50 It is in that light, the learned Judge in paragraph 11 of the judgment refers to Order XL Rule 1 of the Code of Civil Procedure, 1908 and the Bombay High Court Original Side Rules and holds that there is no automatic discharge of the Court Receiver merely because the proceedings have ended. No order requiring to return the property in his possession can itself discharge the Court Receiver. The Rules have been referred to as the Court Receiver was appointed by the High Court in the jurisdiction conferred in it on its Original Side whereunder when the main suit is dismissed and the rights of the parties are finally established, the Receiver must account to the Court appointing him for money or property which is in his hands and the Court which appoints the Receiver has authority to ::: Downloaded on - 09/06/2013 19:33:55 ::: *33* crr.25.07.ao.221.80.sxw pass orders for winding up the affairs of the Receiver and his powers even after dismissal of the proceedings/suit. In that light, the Honourable Supreme Court decision in the case of Hiralal Patni v/s Loonkaren Sethia, reported in AIR 1962 SC 21 was referred to and followed. The observations in paragraphs 17 and 18 of the order of the learned Single Judge will have to be seen in the light of this factual position. The legal principles are settled, but their application will depend on facts of each case.
51 Here in the instant case, the learned Judge exercising powers appointed the Court Receiver, but those powers were exercised in an Appeal from Order and dealing with the refusal of the Trial Court to appoint the Court Receiver in a suit pending at Thane. The applicability of the Original Side Rules, therefore, cannot be presumed. It is doubtful as to whether the Original Side Rules will apply in this case or can be taken assistance of. That apart, there is specific order and direction that the Receiver in this case will continue till the pendency of the suit. Therefore and when there is no report of the Court Receiver pending before this Court from 1983 till 2007, then, it is doubtful whether the principles laid down in this decision can assist Mr.Kamdar.
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52 The other decision in the case of ICICI Ltd. (Debenture
Trustees) v/s Kothari Industrial Corporation Ltd. reported in 2005(5) BCR 213 is taking note of the same principles and applying it. Once again in that case the issue was whether the execution proceedings should be transferred and in that light and when various contentions were raised and when it was not disputed that the Receiver was appointed as a Receiver in execution, the learned Judge applied the above principles.
Such is not the case before me. In these circumstances even this decision is distinguishable. In the present case and before me the Court Receiver is not appointed in execution. Therefore, the mode of execution of decree as provided in Section 51 clause (d) of the Code of Civil Procedure, 1908 itself cannot be invoked.
53 In the above circumstances, none of these decisions can come to the aid of the Plaintiffs in this case.
54 As a result of the above discussion, both these Court Receiver's reports which are thoroughly misconceived and untenable have to be disposed of. They are, accordingly, disposed of, but without passing any orders and directions as prayed. There will be no order as to costs.
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55 Before parting, the present matter reflects sorry state of
affairs and the functioning and working of the office of the Court Receiver leaves lot to be desired. The Court Receiver, High Court Bombay who had been appointed as a Receiver in this case did not bother from 1983 till 2007 and equally thereafter to peruse the order of his appointment passed by this Court in its entirety. If at all, it presented any difficulty to him, he should have taken legal assistance. He has, at public costs and by utilizing public funds, continued to carry on correspondence, conducted site visits and inspections, deputed his representative to appear before several authorities including survey and revenue authorities and purported to issue directions to the revenue authorities without ascertaining the extent and scope of his powers. He should have at the first instance and in any event after disposal of the suit, First Appeal or Special Leave Petition, sought directions from the Court as to what he should do further and whether he should hand over the property in question on "as is where is"
basis. He does nothing of this kind, but continues to act at the behest of the Decree Holders and assist them, but that too perfunctorily and not whole heartedly.
56 Had that not been the case, the Court Receiver would not have invited allegations as that are made in the affidavit of Mr.Bipin Shah, ::: Downloaded on - 09/06/2013 19:33:55 ::: *36* crr.25.07.ao.221.80.sxw Constituted Attorney of Appellants and filed in these proceedings on 19.07.2012. In paragraph 3 of this affidavit and relying upon correspondence with the Receiver, what has been alleged is that the Court Receiver wrongly recorded that the letter dated 23.08.2008 was in respect of demolition of the compound wall of Maria Restaurant. Thus, the Court Receiver's understanding of the issue and contents of the letter is faulted with. Then he is accused of not taking any action by seeking appropriate directions from this Court for past five years. The Court Receiver is faulted for not moving the Court and filing his report and seeking directions in paragraph 4 of this affidavit. In paragraph 5, what is alleged is that it is duty of the Court Receiver to safeguard interest of the suit property, if not by himself through the directions of this Court in order to protect the suit property. It is not proper on his part to merely shun away from his duties and let the entire burden fall upon the Appellants. This is the allegation made against the office of the Court Receiver and the Receiver in paragraph 5. Thereafter, it is alleged in paragraph 6 that the Court Receiver has not ascertained as to whether the property admeasures 46 Gunthas or 86 Gunthas as claimed. Thus, very serious allegations have been made that the directions of the Court Receiver passed in its meetings held on 30.03.2012 and 08.05.2012 were really unnecessary and totally uncalled for. When the allegations are made that security agency was ::: Downloaded on - 09/06/2013 19:33:55 ::: *37* crr.25.07.ao.221.80.sxw threatened and security guards were removed, it is claimed that the Receiver did not do anything despite the letter dated 19.07.2012 being forwarded to him. All this was clearly avoidable and by timely intervention and proper attention of the Court Receiver.
57 To my mind, not only in the light of this affidavit, but generally when matters as old as this are pending in the office of the Court Receiver and when parties were involving and engaging him in unnecessary and fruitless correspondence as noted above, why he did not deem it fit to seek any directions from the Court or intervention of the Court otherwise is not clear to me at all. It appears that the office of Court Receiver is either misguided or has allowed itself to be misguided completely. In any event what has transpired in this case needs proper and thorough scrutiny and will have to be subject matter of an independent inquiry on the administrative side. There may be many such cases which may be lying unattended or not properly attended and taken care of. There may be serious charges of encroachments on immovable properties such as open lands by parties because of inaction of the Court Receiver in taking care and safeguarding them. Inaction, lethargy and delay may defeat just causes. The causes such as removal of encroachments, trespassers and wrongdoers may also be by now barred ::: Downloaded on - 09/06/2013 19:33:55 ::: *38* crr.25.07.ao.221.80.sxw by Law of Limitation. Such deeds would only encourage lawbreakers and wrongdoers. There may be several issues and more complicated and serious on account of the Receiver being ill advised or acting on his own without proper legal advise and assistance. If such matters as these are indeed pending and if this case itself is a pointer, then, for efficient and smooth working of the Court Receiver's office and equally to avoid charges of misappropriation, mal-administration, to my mind, it will be proper if an inquiry is ordered taking this case as an illustration. It will not be possible to find any case as glaring as this and in which the Court Receiver's office continues under an impression for more than 30 years that the Court Receiver, High Court Bombay is appointed as a Receiver of the immovable property in Thane district under the order of this Court and which is understood to mean that despite final disposal and the decree in the suit, he is not discharged.
58 Let a copy of this order with these observations be placed before the Committee of Honourable Judges dealing with the Court Receiver's office on administrative side for suitable directions and measures so as to avoid such a situation in future.
59 The Court Receiver's Reports are, accordingly, disposed of. No costs.
(S.C. Dharmadhikari, J) ::: Downloaded on - 09/06/2013 19:33:55 :::