Bombay High Court
Vishal Harish Chellaram vs Murli Tahilram Chellaram And 24 Ors on 13 February, 2019
Author: N. M. Jamdar
Bench: Naresh H. Patil, N. M. Jamdar
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5, 6 and 7-app- 485, 487 & appl-449-18.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 485 OF 2018
IN
CHAMBER SUMMONS NO. 935 OF 2017
IN
EXECUTION APPLICATION NO. 1302 OF 2017
IN
SUIT NO. 111 OF 1992
WITH
NOTICE OF MOTION (L) NO. 1221 OF 2018
Vishal Harish Chellaram .. Appellant
(Org.Plff. No.1)
Vs.
Murli Tahilram Chellaram and ors. ..Respondents
(Org.Defts.)
WITH
APPEAL NO. 487 OF 2018
IN
EXECUTION APPLICATION NO. 1303 OF 2017
IN
SUIT NO. 111 OF 1992
WITH
NOTICE OF MOTION (L) NO. 1218 OF 2018
Ashwin Harish Chellaram ..Appellant
(Org.Plff.No.2)
Vs.
Murli Tahilram Chellaram and ors. ..Respondents
(Org. Defts.)
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5, 6 and 7-app- 485, 487 & appl-449-18.doc
WITH
APPEAL (L) NO. 449 OF 2018
IN
TESTAMENTARY PETITION NO. 408 OF 2016
WITH
NOTICE OF MOTION (L) NO. 1219 OF 2018
Vishal Harish Chellaram & anr. ..Appellants
(Org.Plffs.)
Vs.
Mr. Shivaramakrishnan Subramonian ..Respondent
Mr. Ajit Anekar with Mr. Thomas James I/by Auries Legal for the
appellant in all the appeals.
Mr. Firoz Bharucha with Ms. Amanda Rebello and Mr. Yash
Momaya I/by Vashi and Vashi for respondent nos.8,11, 12, 13 and
15 in Appeal Nos.485 and 487 of 2018 and for respondent in
Appeal (L) No.449 of 2018.
Mr. Jehangir Jeejeeboy I/by Jatin Sheth for respondent no.16 in
Appeal Nos.485 and 487 of 2018.
CORAM: NARESH H. PATIL, CJ. &
N. M. JAMDAR, J.
FEBRUARY 13, 2019.
P.C.
1. These three appeals arise from the same Suit, are argued together and are disposed of by this common order.
2. Mr. Vishal Harish Chellaram and Mr. Ashwin Harish ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 07:56:53 ::: 3/7 5, 6 and 7-app- 485, 487 & appl-449-18.doc Chellaram, the appellants are plaintiff nos. 1 and 2 respectively. A Suit was filed in the year 1992 against late Lachmibai and others in respect of the properties. A consent decree was passed by this court on 5 July 2005. Execution Application Nos. 1302 and 1303 of 2017 were filed for execution. Various orders were passed in the execution proceedings from time to time till execution proceedings were dismissed by the impugned order dated 4 September 2018. The Chamber Summons taken out by the appellants were also dismissed. The Chamber Summons were moved for direction to the respondents to furnish details of the properties.
3. The impugned order issued three directions i.e. dismissal of Chamber Summons, dismissal of the execution applications and the written consent of the appellants to the grant of probate of Lachmibai was dispensed with.
4. We have heard the learned counsel appearing for the respective parties, perused the record and the impugned order.
5. The learned Single Judge has noted that the appellants in the past had accepted that Lachmibai had acquired certain shares, which was recorded in the earlier order, however, the appellants had sought to contend something different than what ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 07:56:53 ::: 4/7 5, 6 and 7-app- 485, 487 & appl-449-18.doc they had accepted earlier. The learned Single Judge observed that it was not proper on the part of the appellants to advance such new contention, which amounts to taking chances in the court proceedings.
6. The learned counsel for the appellants submitted that it is not correct that the appellants had accepted certain position which was recorded in the earlier order as the earlier order passed by the learned Single Judge had noted the submission as having made for the time being. It is submitted that in that context the appellants had sought to point out on the basis of record itself and the argument of the appellants was in consonance with the consent terms. The learned counsel for the respondents contested this assertion and submitted that the appellants are seeking to go beyond the consent decree and are seeking something more than what is provided for. The learned counsel submitted that the learned Single Judge was right in dismissing the execution proceedings and Chamber Summons. They submitted that inspite of agreeing for giving consent to the probate in the consent terms, the appellants were wrongfully withholding the same and, therefore, the learned Single Judge had rightly dispensed with the written consent of the appellants.
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7. Apart from the contentions that are advanced before us, we have looked at the issue at hand in terms of the procedure and the legal position. The learned counsel for the respondents also had to agree that there is no finding rendered by the learned Single Judge that the decree stands satisfied. There is also no finding that all parties have received their share as per the consent decree. In fact, the reading of the impugned order suggests that the decree is not executed fully. If party is seeking a share higher than the one provided in the decree, such contention can be negatived. Since there is no finding that the decree stands satisfied, which position is accepted by the respondents, it will be appropriate that the execution proceedings are restored to file. The execution proceeding will have to be taken to an logical end.
8. As far as the dismissal of the Chamber Summons are concerned, we have perused the prayers made in the Chamber Summons. The appellants are seeking various directions to the respondents. In our opinion, what the Chamber Summons seek to do is something which the executing court has power to direct if it finds necessary in the execution of decree. Therefore, even if the Chamber Summons are dismissed, in case the learned Single Judge finds that these directions need to be issued in furtherance of execution of the decree, the learned Single Judge has ample power to do so. In view of this clarification, no further direction in the ::: Uploaded on - 18/02/2019 ::: Downloaded on - 17/03/2019 07:56:53 ::: 6/7 5, 6 and 7-app- 485, 487 & appl-449-18.doc appeals challenging the dismissal of Chamber Summons, is required.
9. As regards the direction that the appellants' written consent to the grant of probate is dispensed with, the appellants made a serious grievance about the same. It was contended that respondents are not adhering to their promises under the consent decree and, therefore, the appellants' written consent cannot be dispensed with. It was submitted that there are no reasons given in the impugned order as to why such direction is issued. According to the respondents, under the consent terms themselves, the appellants are required to give written consent for grant of probate.
10. Since we have restored the execution applications and have clarified the position regarding the Chamber Summons, we are of the opinion that this direction dispensing with written consent of the appellants to the grant of probate, should be looked at afresh by the learned Single Judge.
11. In the circumstances, we dispose of the appeals by directing as under :-
(a) Para 9 of the impugned order, dismissing execution applications, is quashed and set aside.
The execution applications are restored to file.
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(b) As regards para 8 of the impugned order, we clarify that even though the Chamber Summons are dismissed, it is open to the learned Single Judge to issue necessary direction in terms of the prayers in the Chamber Summons, if the learned Single Judge is of the opinion that it would be in aid of execution of the decree.
(c) The direction in para 10 of the impugned order,
dispensing with written consent of the
appellants to the grant of probate is set aside and the learned Single Judge is requested to consider the issue afresh.
12. Appeals stand disposed of as above.
13. Notices of Motion (L) Nos.122, 1218 and 1219 do not survive and are disposed of as such.
N. M. JAMDAR, J. CHIEF JUSTICE
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