IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.12 OF 2008 WITH REVIEW PETITION NO.13 OF 2008 IN CIVIL APPLICATION NO.2911 OF 2008 IN FIRST APPEAL NO.1056 OF 2002 Mr.Sajid Ahmed Mohammen Amin )..Petitioner Versus Moinuddin s/o Shukrulla & Ors. )..Respondents ---- Shri G.S.Godbole with Shrikant Yadav for the petitioner. Mr.A.R.Patil for the respondent no.1. Mr.C.G.Gavnekar with Deepa Sawant for respondent nos.1 to 7. Mr.M.Y.Jadhav for respondent no.8. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 5.8.2008. PC 1. Both these review petitions seek to review my order dated 24.6.2008. It is contended by the Advocate appearing for the petitioners in both the review petitions that though the decree against the original plaintiff provided that after the dismissal of the suit, the Court Receiver who had taken possession from the original plaintiff should put the plaintiff back in the possession, it was the plaintiff himself who filed a First Appeal. It was : 2 : contended that by an order dated 8.10.2004 passed in the First Appeal, the order discharging the Court Receiver was kept in abeyance and the original defendant was appointed as an agent of the Court Receiver. It has been contended that as per the record, the First Appeal came to be dismissed on 5.9.2006 for non removal of office objections. It has been contended that the order passed on 8.10.2004 was a self operative order and provided for the appointment of the Court Receiver pending the appeal. It is therefore, the contention that on the dismissal of the appeal on 5.9.2006 the Court Receiver would stand discharged. Even if this position is accepted, the net result would be that on the dismissal of the appeal on 5.9.2006, the Court Receiver was bound by the direction contained in the decree to restore the premises to the original plaintiff from whom the possession was admittedly taken by the Court Receiver during the pendency of the suit. It appears that the original defendant knowing fully well that as per the decree the possession will now handed over to the plaintiff, filed an application on 4.1.2007 with the Bombay Municipal Corporation for transfer of the premises to the petitioners in Review Petition No.12 12 of 2008, who was a third party. It is seen from the record that though the appeal was restored by an order passed in Civil Application No.4136 of 2006 dated 3.3.2007, no status-quo ante was granted. : 3 : This position continued till the order passed by this Court on 2.5.2008, when the Court Receiver was directed to seal the premises in view of the Court Receiver’s report. That was the order under challenge in Civil Application No.2911 of 2008 in which my order dated 24.6.2008 was passed. In my view, when the aforesaid order was passed on 24.6.2008 no documents were produced indicating payment to the original defendant. Even today, no such document is shown to me. The device adopted by the original defendant to transfer his tenancy to the applicant in Civil Application No.12 of 2008, in my view, would defeat the direction given in the impugned decree to put the plaintiff back in the possession. The record indicates that on the date of the suit the original plaintiff was in possession and no device can be accepted which has the effect of dis-possessing him without following due process of law. Though it is contended by the applicants that there was no prayer in Civil Application No.2911 of 2008 for appointing the original plaintiff as the agent of the Court Receiver, this direction in fact, is in implementation of the direction contained in the original decree. It was contended by the Advocate for the petitioners that even if there was such a direction, the same could only be implemented through an execution proceeding. In my view, this is not the correct position and no execution proceeding was required since the : 4 : plaintiff’s prayers in the suit were dismissed. The Court Receiver was duty bound to follow the direction to restore the plaintiffs’ possession even in the absence of an execution proceeding. In the circumstances, in my view, my order dated 24.6.2008 is not passed on any erroneous footing which would require its review. The only addition which in my view, is required, is to protect the interest of the petitioners in Civil Application No.12 of 2008 as well as the interest of the Bombay Municipal Corporation by providing that, on being put in possession, the original plaintiff will further deposit an amount of Rs.538/- per month in this Court being the rent levied by the Bombay Municipal Corporation for occupation of the premises. Subject to this additional direction the review petitions stand disposed off. Learned Advocate appearing for the petitioners apply for status-quo order as they would like to challenge this order in the higher Court. Status-quo be maintained for a period of eight weeks. Learned Advocates for the petitioners state that in case, their clients move the Apex Court, private notice of the date of hearing of the said petitions will be given to the original plaintff. The statements are accepted. Petitions stand disposed off. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)