IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION REVIEW REVIEW REVIEW PETITION (L) NO.3 OF 2008 PETITION (L) NO.3 OF 2008 PETITION (L) NO.3 OF 2008 IN IN IN APPEAL APPEAL APPEAL NO.525 OF 1994 NO.525 OF 1994 NO.525 OF 1994 IN IN IN SUIT SUIT SUIT NO.3033 OF 1994 NO.3033 OF 1994 NO.3033 OF 1994 1.Ramzanali Gulam Hussain Ramodiya ) ’C’ Wing, 5th Floor, Flat No.1 ) old Prabhadevi Road, Worli ) Bombay - 400 025 ) 2.Phiroz Gulam Hussain Ramodiya ) Manjrekar Sadan, 1st Floor, Flat No.4,) Dr.A.B. Road, Worli, Bombay -25 )..Petitioners (Orig.defendants) V/s. 1.Hamida Karim Ramodiya ) C/o.Mr.Rajabh Premji, 101, Vrindavan, ) 32, Mount Marry Road, Bandra(W), ) Mumbai - 400 050. ) 2.Nushrat Rajabali Ramodiya, ) 504, Delux Building, Silver Jubilee ) Hsg.Society, P.G. Road, ) Sikandrabad - 500 003 ) Also guardian of Minors ) 1) Master Aleem H.Ramodiya ) 2) Miss.Rhea R. Ramodiya )..Respondents (Org.Plaintiffs) 3.Pyarali Ramodiya ) Vaibhav Apts,B-Wing, 1st Floor, ) Flat No.1, Old Prabhadevi Road, ) Bombay-400 025 ) 4.Aminabai G. Ramodiya (Since deceased) ) 5.Amirali Ramodiya, ) Manjrekar Sadan, 1st Floor, Flat No.4,) Dr.A.B. Road, Worli, Bombay-400 025 )..Respondents (Org.defendants) ....... Ms. Rufina Ramodiya, Mr. Phiroz Ramodiya, petitioner No.2 present in person. Mr. Kishore Jain i/by Tushar Goradia for the respondents : 2 : ...... CORAM CORAM CORAM : SMT RANJANA DESAI & : SMT RANJANA DESAI & : SMT RANJANA DESAI & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE ON WHICH THE JUDGMENT IS RESERVED : 13/10/2008 ON WHICH THE JUDGMENT IS RESERVED : 13/10/2008 ON WHICH THE JUDGMENT IS RESERVED : 13/10/2008 DATE DATE DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 20/10/2008 ON WHICH THE JUDGMENT IS PRONOUNCED: 20/10/2008 ON WHICH THE JUDGMENT IS PRONOUNCED: 20/10/2008 JUDGMENT JUDGMENT JUDGMENT : (PER K.K. TATED, J) : (PER K.K. TATED, J) : (PER K.K. TATED, J) 1. Petitioner No.2 Mr. Phiroz Gulam Hussain Ramodiya appearing in person requested that he is not keeping well and therefore his daughter Ms. Rufina Ramodiya be allowed to argue on behalf of him. The same request is accepted. 2. This Review Petition is preferred by original defendants under Section 114 and 152 of the Code of Civil Procedure for correcting consent order dated 22.4.1996. It is the case of the petitioner that it remained on the part of Court at the time of passing consent order dated 22.4.1996 to insert the words "in lieu of" in clause 4 of the consent order dated 22.4.1996. The few facts of the present case are as under:- 3. The Suit No.1791 of 1994 came to be filed by the respondent-original plaintiff against the petitioners : 3 : claiming share in the Ramodiya Mansion II. The respondents claimed 1/4th share in the said property. One more Suit No.3033 of 1994 came to be filed by respondents against the petitioners for seeking shares in the partnership firm of Honesty Provision and General Stores. In those both the suits, respondents-original plaintiffs preferred notice of motion for appointment of Court Receiver and other reliefs. Being aggrieved by the said order, petitioner hereinabove preferred Appeal No.575 of 1994. In the said appeal, minutes of order filed on 19.8.1994. By consent, the parties appointed Shri Mahendra Shah, senior Counsel as mediator to settle all the disputes between the parties against each other in respect of business, assets and properties belonging to and / or claimed by them. The mediator submitted his report dated 15.8.1996 in Appeal No.575 of 1994. Considering the report submitted by the mediator dated 15.8.1996, consent minutes of order came to be passed in Appeal No.575 of 1994 dated 22.4.1996. As per the consent minutes of order, the petitioners were liable to pay certain amount to the respondents. As the respondents failed to comply their part as per consent minutes of order, the respondents preferred execution application in this Hon’ble Court. : 4 : 4. Thereafter, the petitioners preferred Chamber Summons No.674 of 1998 for declaration that the decree passed in Suit is nullity and inexecutable. In the said Chamber Summons, the prayer was also made that during the pendency of the Chamber Summons, the Court Receiver be restrained from dispossessing or interfering with the possession of petitioners in respect of Flat No.5, 2nd Floor, Ramodiya Mansion II, Dr.A.B.Road, Worli, Mumbai-25. The said Chamber Summons No.674 of 1998 came to be dismissed by order dated 18.12.1998. Thereafter, the petitioner preferred another Chamber Summons No.1168 of 2000 in Execution Application No.20 of 1999 for setting aside the Execution Application N.20 of 1999 and attachment levied under the warrant of attachment dated 16.2.2000. The said Chamber Summons came to be dismissed with costs of Rs.25,000/- by order dated 20.10.2000. Thereafter, the petitioners preferred one more Chamber Summons No.562 of 2001 praying for an order of stay of the sale of the movable property fixed on 27.4.2001 as per proclamation issued by the Sheriff of Bombay on 19.4.2001 for a declaration that the warrant of attachment dated 10.2.1998 and 16.2.2001 taken out by the respondents is in excess of the consent decree, for a direction to the Prothonotary and Senior Master to rectify the warrant of attachment i.e. Execution : 5 : Application No.20 of 1998 and for a declaration that decree being satisfied in view of the purchase of Ramodiya Mansion II by the respondents as a share of the respondents is fully met and for a relief that pending the hearing and final disposal of the Chamber Summons, the warrant of attachment in Execution Application No.20 of 1998 be stayed. The said Chamber Summons came to be dismissed by order dated 9.10.2001. At the time of dismissing the said Chamber Summons, the Hon’ble Court observed that the petitioners have failed to comply the terms and conditions of consent decree and, therefore, execution proceedings to continue. Paragraphs 27 and 28 of order dated 9.10.2001 in Chamber Summons No.562 of 2001 reads as under:- "27. At this stage, merely because Ramodiya Mansion II was not able to fetch the value of Rs.4,32,00,000/- as fixed by the learned mediator in his order as the said property was put up for sale in 1998, it is not open to the applicants herein to contend that the purchase price of Rs.1,90,00,000/- which has remained with the Respondents herein is to be adjusted towards the satisfaction of the consent decree. The manner of satisfaction of the consent decree has already been recorded in the decree itself. The applicants not having paid the amount by October, 1996, the Respondents herein are entitled to execute the decree for entire amount. There is no question of the decree being satisfied on the basis of purchase price of Rs.1,90,00,000/- as that was neither the intention of the mediator nor the intention of the Division Bench at the time when the decree was passed, and the above amount is to be : 6 : adjusted towards the claim of the respondents under the decree. 28. So far as the applicants are concerned, they are not entitled to any order on Chamber Summons as they cannot read into the decree. Something which is not recorded in the decree. Further, so far as the provisions of Section 47 are concerned, the same have no application to the facts of the present case, as the decree in the proceedings before this Court speaks for itself. No questions has remained open for determination by the executing court under Section 47 of the Code of Civil Procedure as contended by the petitioners." 5. The petitioners being aggrieved by the order dated 9.10.2001, in Chamber Summons No.562 of 2000 preferred Appeal No.1123 of 2001. The said appeal came to be dismissed by Judgment dated 27.3.2002. Again the said Judgment dated 27.3.2002 in Appeal No.1123 of 2001, the petitioners preferred Civil Appeal No.(S) 5160-5161 of 2002 in the Supreme Court of India. The said Civil Appeal came to be dismissed by order dated 24.8.2005. Thereafter, the petitioners preferred Review Petition (Civil) No.1613-1614 of 2005 in Supreme Court of India. The said Review Petition also came to be dismissed by order dated 29.9.2005 by the Apex Court. Thereafter, again the petitioners preferred Curative Petition (C) No.2 of 2006 in Supreme Court of India. The said petition also came to be dismissed on 5.4.2006. Not only that the petitioners preferred one more Chamber : 7 : Summons No.1194 of 2007 in Execution Application No.20 of 1998 for declaring that the consent decree passed in the present proceedings is without jurisdiction and therefore the same is nullity. The said Chamber Summons came to be dismissed with cost of Rs.30,000/- by order dated 13/14.9.2007. Against the said order, the petitioners preferred Appeal (L) No.24 of 2008. The said appeal also came to be dismissed by order dated 29.8.2008. 6. Thereafter, the petitioners preferred the above mentioned Review Petition for reviewing the order dated 22.4.1996 passed by this Hon’ble Court. The petitioners have failed to explain the delay in preferring the Review Petition after 12 years from the date of consent order passed by this Hon’ble Court. Not only that admittedly, the Execution Application is pending against the petitioners for recovery of sum of Rs.4,62,56,066/-. It is the case of the petitioners that the respondent cannot execute the consent decree in respect of other properties of petitioners except Ramodiya Mansion II. It is the contention of the petitioners that as per consent minutes of order dated 22.4.1996, the respondents can execute the consent decree only by selling the property known as Ramodiya Mansion II. : 8 : Paragraph 4 of the consent minutes of order dated 22.4.1996 read as under:- "4. In case of default on the part of Appellant Nos.1 to 4 in paying to Respondent No.1 for herself and her minor daughter Lisha Rs.1,31,70,000/- with interest thereon at the rate of 15% per annum from 1.4.1994 till payment and payment and payment and paying to Respondent No.2 Nushrat for herself and her minor children Aaleem and Rhea Rs.1,26,20,000/- with interest thereon at the rate of 15% per annum from 1.4.1993 till payment on or before 17.10.1996 the decree for entire amount as per clauses 21(2) and 21(4) to become forthwith due and payable by Appellants Nos.1 to 4 of the Respondents and Appellants Nos.1 to 4 to be entitled to execute for the same and Court Receiver do at and appointed as Receiver in execution of the property known as Ramodiya Mansion II." 7. As the petitioners already challenged the consent decree in Appeal as well as by filing Special Leave Petition in the Apex Court, it is not possible to amend the same as claimed by the petitioners in the above mentioned Review Petition. 8. On the other hand, advocate appearing on behalf of respondent No.1 and 2 pointed out that in execution, the sale has already taken place. Not only that Sheriff’s office tried to take possession of the suit property, which was obstructed by the petitioners at : 9 : several times. By the present petition for correction of the decree under Section 152 of the Code of Civil Procedure, the petitioners are attempting to achieve the same thing, which they tried to achieve by the Chamber Summons and failed in that right upto the Supreme Court. After giving our anxious consideration to the contention of the petitioners, we do not find any merit in the contention of the petitioners and hence, the petition is dismissed with costs. JUDGE JUDGE JUDGE JUDGE JUDGE JUDGE