1 crr153-08 in ts 21-85.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION Court Receiver’s Report No.153 of 2008 in Testamentary Suit No. 21 of 1985 in Testamentary Petition No. 296 of 1985 Maris Felints Viole Rodrigues .. Plaintiff v/s. Maria L. Almeida & Ors. ..Defendants Mr.R.S,Tripathi for the Plaintiff. Mr.Piyush Raheja i/b. M.S.Delvi for the Defendants Mr.N.A.Bandodkar, 2nd Asst. to Court Receiver CORAM : R.Y.GANOO, J. DATED : 28th April, 2011 P.C. : 1. The aforesaid suit No.21 of 1985 has abated on account of death of plaintiff therein. The Receiver has filed his report praying that on account of the dismissal of the aforesaid suit the Court Receiver should be discharged without passing accounts, subject to payment of costs, charges, expenses etc. Receiver has sought directions as regards handing over of possession of the three rooms of flat No.5 in 2 crr153-08 in ts 21-85.sxw Louisa House, I.C.Colony, Borivli (West), Mumbai, in respect of which Receiver, High Court, was appointed. (The three rooms referred to in the Receiver’s report shall hereinafter be referred to as said rooms). 2. I have heard learned Counsel Mr. R.S.Tripathi, appearing on behalf of Mr. Rui Rodrigues who is son of Mrs. Maria Rodrigues. Mrs. Maria Rodrigues , during her lifetime filed Notice of Motion No.987 of 1989 in the aforesaid suit praying that she be permitted to break open the locks put up by defendant no.1 in the aforesaid suit in regard to the said rooms. That motion was made absolute by Order dated 13.6.1991. It is the stand of learned Counsel Mr. Tripathi that Mrs. Maria Rodrigues had broken open the locks by taking the benefit of the said order dated 13.6.1991. It is noticed that order dated 13.6.1991 was challenged by Zavier Almeida and others by filing Appeal No.918 of 1991. In the said Appeal learned Division Bench by its Order dated 13.6.1991 appointed Receiver High Court and further appointed Mrs. Maria Rodrigues who was respondent no.1 in the said appeal as agent of the Court Receiver. It is noticed that thereafter Mr.Rui Rodrigues who was appointed as agent of the Court 3 crr153-08 in ts 21-85.sxw Receiver in place of Mrs. Maria Rodrigues, pursuant to the order dated 22.7.2005 could not comply with the said order as the question of royalty was not decided by the Court Receiver, as by the time the royalty could be decided the original plaintiff had expired and the said suit abated on account of death of Mrs. Maria Rodrigues. Be that as it may, as of today the premises are locked and bear the seal of the Court Receiver. Since the suit has abated and Receiver was appointed during the pendency of the said suit, the Receiver cannot hold the premises. It is on account of this, the Receiver appointed pursuant to the order of 6.4.1993 will have to be discharged without passing of accounts. Needless to mention that the Receiver will have to calculate his costs and charges and since the Receiver was appointed at the instance of Mrs. Maria Rodrigues, and since Mr. Rui Rodrigues is claiming on behalf of Mrs. Maria Rodrigues, the said charges will have to be paid by said Mr. Rui Rodrigues. Since the Receiver is being discharged and as of today the said rooms cannot be handed over to a specific person as there are rival claims in regards to the said rooms, it is necessary that the premises remain under the lock and key of the Court. This is so because Mr. Zavier Almeida and others had filed Testamentary Petition No.279 of 1989 4 crr153-08 in ts 21-85.sxw which is already converted into Testamentary Suit No.39 of 1989 and in the said suit, Mr. Zavier Almeida and others have taken out Notice of Motion No.77 of 2008 seeking appointment of Court Receiver in respect of the said rooms. They have prayed for other reliefs as set out in the said motion. 3. Accordingly, it is hereby ordered that the Prothonotary & Senior Master shall depute her representative to visit the flat No.5, Luisa House, I. C. Colony, Borivli (West), Mumbai on 18.5.2011 between 11.00 a.m. to 12.00 noon. The Receiver also shall depute his representative to visit Flat No.5 Luisa House, I. C. Colony, Borivli (West), Mumbai. After the representative of the Prothonotary & Senior Master and the Receiver meet at the aforesaid flat no.5, Receiver’s representative shall break open seal affixed by the Receiver, remove the locks and hand over possession of the said three rooms forming part of the flat no.5 to the representative of the Prothonotary and Senior Master. The representative of the Prothonotary & Senior Master shall put his locks and his seal to the said three rooms and deposit the keys in the safe custody of Prothonotary & Senior Master. The Receiver’s Representative as 5 crr153-08 in ts 21-85.sxw well as the representative of the Prothonotary & Senior Master shall file a report accordingly. There is no need for a specific party to remain present and observe the procedure to be followed by the Receiver’s representative and the representative of Prothonotary & Senior Master, However, if a party is interested in remaining present, it can remain present. Such a party shall remain present at the site, but it shall not interfere with the job to be done by the Receiver’s representative and the representative of the Prothonotary & Senior Master. 4. The Receiver, High Court, Mumbai, stands discharged without passing account, 5. The Court Receiver shall calculate the costs and expenses payable for, and the said charges will be paid by Mr. Rui Rodrigues who claims to be the son of Mrs. Maria Rodrigues . The party who is interested in getting possession of the aforesaid three rooms is free to file appropriate proceedings. Hearing of Notice of motion No.77 of 2008 in Testamentary Suit No.39 of 1989 in Testamentary Petition No.279 of 1989 stands adjourned to 30.6.2011. Any person who is 6 crr153-08 in ts 21-85.sxw interested in seeking possession of the aforesaid three rooms as per this order shall file such proceeding on or before 20.6.2011 so that the said proceeding as well as the Notice of Motion No.77 of 2008 as mentioned aforesaid can be tagged together and decided on merits. As of today this Court has not expressed any views as to who is entitled to be in possession of the said three rooms on account of the various developments which have taken place since after 1991. 6. Mr.Zavier shall deposit sum of Rs.500/- (Rupees Five Hundred Only) in this court on or before 9.5.2011 so that from the said amount of Rs. 500/- Prothonotary & Senior Master shall arrange to purchase the locks. If any amount remains after purchasing the locks same be credited to the account Government of Maharashtra. 7. Aforesaid Receiver’s report stands disposed of in aforesaid terms with no order as to costs. [R.Y.GANOO, J.]