Bombay High Court
Rameshbhai Harjibhai Makwana vs Yezdi Darabsha Icchaporia And 17 Ors on 28 June, 2022
Author: V. G. Bisht
Bench: G.S. Patel, V. G. Bisht
15-OSIAL-12403-2022 IN APPST-12396-2022.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 12403 OF 2022
IN
APPEAL (L) NO. 12396 OF 2022
IN
INTERIM APPLICATION (L) NO. 10443 OF 2022
IN
INTERIM APPLICATION (L) NO. 20980 OF 2021
IN
EXECUTION APPLICATION (L) NO. 5258 OF 2021
IN
SUIT NO. 955 OF 2015
Parbatsinh Dolatsinh Dodiya & Ors ...Applicants
In the matter between
Rameshbhai H Makwana & Ors ...Plaintiffs
Versus
ARUN
Nergish Kersi Dotiwala & Ors ...Defendants
RAMCHNDRA
SANKPAL
Digitally signed by
ARUN RAMCHNDRA
SANKPAL
Mr Vishal Kanade, with Kunal Kanungo, Paras Oza and Janhavee
Date: 2022.06.29
10:56:09 +0530 Joshi, i/b Rahul Punjabi, for the Applicants/Appellants.
Mr Nirman Sharma, with Omprakash Kamwal, i/b JV Parmar, for
Plaintiff No.1.
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28th June 2022
15-OSIAL-12403-2022 IN APPST-12396-2022.DOC
CORAM G.S. Patel &
V. G. Bisht, JJ.
DATED: 28th June 2022 PC:-
1. The Appeal is directed against an order of 4th April 2022 (BP Colabawalla, J). It seeks to recall and set aside an order of 11th March 2022. That order appointed the Court Receiver in respect of land bearing No. 850 (p), 853 and 859 at village Sanathal, Jivanpura, Taluka Sanand, District Ahmedabad. The learned Single Judge held that the reason for seeking a recall was the Applicants' claim that they were agricultural tenants and they apprehended dispossession. The learned Single Judge concluded prima facie that the Applicants had slept over their rights, if any, for years on end. He therefore, declined ad-interim relief but clarified that any actions taken would be subject to the outcomes of this Interim Application.
2. There are very many reasons to dismiss the Appeal and to refuse to interfere. The first is that this is an Appeal against an ad- interim order. It is not shown to us that the ad-interim order was even a plausible view. This puts the Appeal within the frame of Wander Limited & Anr v Antox India Private Limited, 1 Mohd Mehtab Khan v Khushnuma Ibrahim Khan,2 and Shyam Sel & Power Ltd & Anr v Shyam Steel Industries Ltd.3 1 1990 (Supp) SCC 727.
2 (2013) 9 SCC 221.
3 2022 SCC OnLine SC 313.
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3. Consequently the discretion of the Appellate court is constricted and concomitantly the task of the Appellants' Counsel is considerably magnified. He must show us that the impugned order was not even a possible view.
4. The mistake is the assumption that the 11th March 2022 order operated to appoint a Receiver in execution of these lands; and, therefore, the executing court went beyond the original decree. That is an entirely erroneous assumption and it may very possibly be mischievous.
5. The Receiver stood appointed of these lands in a very old decree dated 15th February 1956 in Suit No. 1269 of 1951. The Receiver was appointed of these lands in those proceedings. The decree in the 2015 Suit (in which a recall was sought) only continued that Receiver but in respect of the properties that was the subject matter of Suit No. 955 of 2015.
6. Thus the decree in Suit No. 955 of 2015 (SJ Kathawalla, J, 6th May 2016) did not appoint the Receiver of these three lands nor was the Receiver appointed of these three lands in execution. That Receiver was appointed of these three lands under the decree in the 1951 suit.
7. Ex-facie the entire application before the learned Single Judge proceeded on an incorrect assumption. If the Appellants/Appellants claim to be agricultural tenants, their remedies lie elsewhere. Those remedies are of course kept open and all contentions of both sides Page 3 of 4 28th June 2022 15-OSIAL-12403-2022 IN APPST-12396-2022.DOC are preserved at large for appropriate proceedings in a court or forum of competent jurisdiction.
8. This is sufficient in our view to not only dispose of the Appeal, the Interim Application in the Appeal but also, the Interim Application (L) No. 10443 of 2022 and we take the liberty of doing so, withdrawing it forthwith to ourselves.
9. We adopt this approach lest it be argued before the learned Single Judge that despite our order today something survives in the Interim Application (L) No. 10443 of 2022 and the same arguments are reiterated all over again.
10. In our view the Appellants are otherwise sufficiently protected by our order today.
11. The Appeal, the Interim Application in Appeal and the original Interim Application are all dismissed with these observations.
(V. G. Bisht, J) (G. S. Patel, J)
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28th June 2022