1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF MOTION NO. 773 OF 2008 IN SUMMARY SUIT NO. 554 OF 2008 Jamaluddin Karim Masalawala. .... Plaintiff. V/s. Bhawanji M. Gala and Ors. .... Defendants. ....... Mr. H.J. Thakkar, Sr. Counsel with Mrs. Joseph Fernandes for the Plaintiff. Mr. J.M. D'Silva for Defendant 1. Mr. Rajiv Narula with Mr. A. Dasgupta i/b. M/s. Jhangiani Narula & Associates for Defendants 2 to 7. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 27TH MARCH 2008. P.C. :- The suit has been instituted for a declaration that the consent terms which were arrived at between the parties on 18th July 1990 before the City Civil Court are valid and continue to bind the Defendants; for a declaration that the Plaintiff is entitled to four flats admeasuring 3290 sq. feet in a building known as Shanta Apartments 2 at Kandivali (West); and for a decree in the nature of specific performance. An agreement was entered into between the Plaintiffs and Defendants on 26th November 1984 for the purchase of a shop at Mahim in a building known as Samrat “A” building. A suit was instituted by the Plaintiff before the City Civil Court, being Suit 4489 of 1990, for specific performance. Consent terms were arrived at in the suit on 18th July 1990 in which it was agreed that the Defendant would allot to the Plaintiff alternate premises consisting of four flats of a total area of 3290 sq.feet in a building at Kandivali and the flats were earmarked as A- 301, A-401, A-304 and A-604 respectively. The First Defendant in turn entered into a development agreement on 30th January 2001 and it is the case of the Plaintiff that the agreement and the consent terms that were arrived at with the Plaintiff are referred to therein. It has also been submitted that in a suit between the First and the Second Defendants in the City Civil Court being Suit 3230 of 2004, a consent decree came to be passed on 26th July 2004 in which the agreement with the Plaintiff has also been referred to. 3 In the present Notice of Motion the position which has been taken by the Defendants is that Flats A-301 and A-401 were sold on 13th September 2005 and 2nd May 2006 under registered agreements and that flats A-301 and A-401 admeasure 570 sq. ft. each. The contention is that there is no flat by the description of A-301 or A-401 with an area admeasuring 995 sq.ft. as envisaged in the consent terms. Moreover, it has been submitted that there is no flat with the description of A-304 and A-604. On the other hand it has been asserted on behalf of the Plaintiff that the description of the flats has been wrongly altered by the Defendants and reliance has been sought to be placed on a notice dated 8th August 2006 published in the Free Press Journal. The remedy of the Plaintiff lies in executing the decree of the City Civil Court dated 18th July 1990 in Short Cause Suit 4489 of 1990. An independent suit would not be maintainable. All questions relating to execution would have to be determined by the executing Court under Section 47 of the Code of Civil Procedure, 1908. Section 47 provides that all questions which arise between the parties to the suit in which 4 the decree was passed relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In the circumstances, the Notice of Motion shall stand dismissed leaving it open to the Plaintiff to seek recourse to the appropriate remedy available in law. ------