ash 1 caf-1872.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO. 1872 OF 2011 IN FIRST APPEAL NO. 250 OF 2010 Sadanand Annappa Shetty. .. Applicant Vs Smt. Susheela Shama Shetty, (deleted since deceased ) Mrs. Usha Bharat Shetty .. Respondent -- Shri M.D. Naik for the Applicant. Shri Ajit Karwande for the Respondent. -- CORAM ; A.S. OKA, J DATED : 14TH JULY, 2011 P.C. . Heard learned counsel appearing for the Applicant and the learned counsel appearing for the Respondent. 2. This is an application filed by the Appellant ( Original Plaintiff ) seeking modification of the interim order dated 4th May, 2010 passed by this Court on First Appeal No.250 of 2010. 3. The dispute between the parties relates to a restaurant premises. The suit was filed by the Appellant in the City Civil Court for declaration that the consent decree passed in the earlier suit was null ash 2 caf-1872.11 and void and unexecutable. Therefore, a decree of perpetual injunction was prayed for. During the pendency of the suit, there was an interim order by which the Court Receiver, High Court, Bombay was appointed as the Court Receiver of the suit premises. During the pendency of the suit, there was an order passed in an appeal from order preferred by the Respondent directing that the Court Receiver shall be continued and the present Applicant will act as an agent of the Court Receiver on usual terms till the disposal of the probate proceedings. The suit was dismissed. While dismissing the suit, the said interim order operating was continued by the Trial Court till the disposal of the probate proceedings. 4. The present Appeal was preferred by the Applicant- Plaintiff. The Appeal was admitted by this Court on 4th May, 2010 and by the same order, the Civil Application for interim relief filed by the Applicant was disposed of. From the said order, it appears that the Advocates appearing for both the Applicant and Respondent were present and they were heard. The order passed by this Court on 4th May, 2010 reads thus:- “1. Appeal admitted. CIVIL APPLICATION 557 OF 2010:- 1. The civil application has been filed for various reliefs. ash 3 caf-1872.11 2. After hearing the application, in my opinion, since the Court Receiver has already been appointed in the matter by the City Civil Court at the interim stage, he will continue during the pendency of the appeal. The appellant and the respondent may bid for being appointed as agent of the Court Receiver in respect of the Bharat Coffee House. The Court Receiver shall appoint the highest bidder amongst the appellant and the Respondents as agent to run the hotel on the usual terms and conditions. The agency agreement will be executed by the highest bidder within eight weeks after the bidding is completed. 3. Civil application is disposed of accordingly.” 5. Thus, the aforesaid order was passed on the Civil Application for interim relief filed by the Applicant himself. 6. The first prayer in this application is for modification of the order dated 4th May, 2010 to the extent that the Applicant be appointed as an agent of the Court Receiver. Thus, in short, the prayer is for modification of the order dated 4th May, 2010 passed by this Court on the application for interim relief filed by the Applicant himself. 7. Considering the nature of the relief sought, the propriety required that this application should be heard by the same learned Judge who has passed order dated 4th May, 2010. However, the learned Judge is at present sitting at the bench at Aurangabad and hence ash 4 caf-1872.11 considering the proviso to Sub-Rule 1 of Rule 3 of Chapter XXX of the High Court Appellate Side Rules, 1960, this Application is taken up by this Court which is a regular Court taking up the first appeals and orders matters therein. 8. The first ground on which the modification is sought is that after passing the impugned decree, interim arrangement made during the pendency of the suit was continued till the disposal of the probate proceedings. The submission of the learned counsel appearing for the Applicant is that this order has not been considered by this Court while passing the order of which modification is sought. He submitted that the Applicant was not heard while passing the said order. His submission is that the Applicant is running a restaurant as the agent of the Court Receiver for several years and he has no other business. His submission is that the Respondent is a resident of Karnataka and hence the Respondent cannot be permitted to offer a bid. 9. I have carefully considered the submissions. On a plain reading of the order dated 4th May, 2010, it appears that the Applicant was heard through his advocate. In fact, by the very order, the appeal preferred by the Applicant was admitted and the application for interim relief was disposed of. The suit filed by the Applicant was dismissed by the Trial Court. Therefore, while granting interim relief, this Court ash 5 caf-1872.11 moulded the interim relief by permitting both the parties to offer their bids for being appointed as agent of the Court Receiver in respect of the suit premises. The suit was filed by the Applicant for declaration that earlier the consent decree was null and void. The finding of the Trial Court on merits is that the Applicant has failed to prove that the consent decree is null and void. 10. Learned counsel appearing for the Applicant has relied upon the following part of the order passed by the Trial Court after dismissal of the suit. “In view of interim order passed by this court, as well as order passed by the Hon’ble High Court in High Court Writ No.1987/99 dtd. 9/2/1999, in C.A. No. 5414/1998 in A.O. No.1552/1993, be continued till disposal of Probate proceedings No.134/1992.” 11. When the order dated 4th May, 2010 was passed by this Court, the Appeal was very much before the Court. By the very order, the appeal was admitted. Therefore, it cannot be said that this Court did not consider the aforesaid part of the impugned judgment. While passing an interim order on application for interim relief pending an Appeal, the Court is not expected to write an elaborate judgment. In any event, on the face of it, the Trial Court had no jurisdiction to continue the interim order passed in the suit after dismissing the suit till ash 6 caf-1872.11 disposal of other proceedings. The Trial Court could have continued the interim relief for a reasonable time to enable the Applicant to prefer Appeal. Interim order has been allowed to operate till disposal of the probate proceedings. Therefore, the said order passed by the Trial Court is no ground to modify the order dated 4th may, 2010. As regards the other ground that the Applicant is in possession for a long time and that the Respondent is a resident of Karnataka, the same were available to the Applicant when the order dated 4th May, 2010 was passed. 12. This is not an application for review. Moreover, in this application, no subsequent events have been set out warranting the modification of interim order. Hence, the prayer made in this Application cannot be granted and accordingly the Application is rejected. ( A.S. OKA, J )