:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8019 OF 2008 WRIT PETITION NO. 8019 OF 2008 WRIT PETITION NO. 8019 OF 2008 M/s. A.A. Estates Pvt. Ltd. ..Petitioners versus Sunder Nagar Prasad Co-operative Housing Society Ltd. & Ors. ..Respondents Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. S B. Prabhavalkar for the Petitioners. Mr. G. S. Godbole with Mr. G. M. Savagave for the Respondent Nos. 3, 4, 5 and 7. Mrs. R. S. Gudekar, S.O. from the Office of the Court Receiver present. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 8TH APRIL, 2009 DATE : 8TH APRIL, 2009 DATE : 8TH APRIL, 2009 P.C. P.C. P.C. . Rule, returnable forthwith. Heard by consent. 2. The petitioners have challenged the Order of the 3rd Adhoc Judge City Civil Court & Addl. Sessions Judge dated 8.10.2008 directing the Plaintiff to comply with the Rules set out in Chapter XV for execution of the decree and order and then press for the reliefs sought. :2: 3. Mr. Dhakephalkar, the learned counsel for the petitioners points out that there was no reason for the Court to direct resort to the provisions of Chapter XV of the City Civil Court Rules 1948 after the Order dated 14.11.2007 directing the appointment of the Court Receiver. By the Order dated 14.11.2007 the Court had allowed the Notices of Motion No. 2810, 2811 and 2812 of 2007 in terms of prayer clauses (a) and (b). Prayer clauses (a) and (b) read as follows: (a) for a temporary injunction and order of this Hon’ble Court, pending the hearing and final disposal of the above suit, restraining the Defendant Nos. 3 and 4, their servants and agents and/or any other person or persons claiming by under or through them including their family members from in any manner interfering with or obstructing and/or creating any impediment in the performance of the obligations under the Development Agreement dated 10th August 2004 annexed at Exhibit ’F’ to the plaint; (b) that pending the hearing and final disposal of the above suit, this Hon’ble Court be pleased to appoint Court Receiver, High Court, Bombay, or some other fit and proper person as receiver in respect of Flat No. 25, Flat No. 27, in respective possession of the Defendant Nos. 3 and 4 in the building belonging to the Defendant No. 1 Society known as Sunder Nagar Samadhan Co-op. Housing Society Ltd., situate at Sunder Nagar Complex, Kalina, Vidyanagari, :3: Mumbai 400098 with all powers under Order XL rule 1 of the Code of Civil Procedure, 1908 including power to take possession of the said flats, if necessary with the help of the police and deliver vacant possession thereof to the Plaintiffs for the purposes of demolition after relocating the Defendant Nos. 3 and 4 in temporary alternative accommodation in transit camp or compensation in lieu of temporary alternative accommodation @ Rs.10,000/- per month and other benefits as per the revised terms agreed by and between the parties in the meeting dated 16th November 2005; The Order dated 14.11.2007 reads as follows: " Notices of Motion No. 2810/07, 2811/07 and 2812/07 in Stamp Numbers 1819/07, 1820/07 and 1821/07 are hereby allowed in terms of prayer clause (a) and (b). In connection with the ad-interim relief claimed vide prayer clause(b) in each Notice of Motion only on the failure of Defendant Nos. 3, 4, 5, 6 and 7 in Stamp No. 1819/07, Defendant Nos. 3 and 4 in Stamp No. 1820/07 and Defendant Nos. 3, 4 and 5 in Stamp No. 1821/07, to comply with the terms of prayer clause (a) of each Notice of Motion, the Court Receiver, Bombay be appointed with the direction to take the possession of flats of all these Defendants, with the due notice as shown in prayer clause (b) of each Notice of Motion, belonging to Defendant No.1, situated at Sunder Nagar Complex, Kalina, Vidyanagari, Mumbai 400098, through the office bearers of Defendant Nos. 1 and 2. The Court Receiver is at liberty to take the police help if needed for taking the vacant possession of all the flats from these Defendants and to hand over the same to the Plaintiffs for the purpose of demolition and redevelopment. While doing so or before that Plaintiffs is directed to accommodate all these Defendants :4: in the temporary accommodation in the transit camp as agreed in earlier agreement. Supplementary Agreement and Resolution mentioned in prayer clause (a) or in the alternative to pay compensation to all these Defendants as agreed in all the aforesaid agreements, resolution etc. The liberty is reserved to the Court Receiver and both the parties to move this Court for directions if required from time to time. Miss. Deepa Samant, Advocate for Defendants in all the aforesaid stamp numbers requested to stay the effect and operation of this order for the period of four weeks. However, her request is accepted and allowed only for a period of three weeks since today." After this Order, there was no reason for the learned Judge to direct the compliance with the Rules pertaining to execution of decrees and orders. The learned City Civil Court had appointed the Court Receiver and granted him liberty to take the police help if needed for taking the vacant possession from the defendants. The mode of execution was prescribed in the Order itself. The procedure prescribed in Chapter XV pertaining to execution of decree would not apply where the Court had passed the order of the nature that it has in the present case. 4. Mr. Godbole, the learned counsel for the Respondent Nos. 3, 4, 5 and 7 submitted that after :5: the Court passes an Order appointing the Receiver, it is necessary for the party to apply for execution under Rule 146 of The Bombay City Civil & Sessions Court Rules, 1948, which reads as follows:- " 146. Application to be made to the Application to be made to the Application to be made to the Registrar.- Registrar.- Registrar.- All applications for the execution of decrees or orders, shall be made by Advocates or by parties in person to the Registrar, and the transmission of decrees and the issue of all the necessary warrants and notices and all amendments thereof shall be made by him." This submission does not appear to be correct. It is obvious that where the order can be executed is self executory such as the appointment of a Receiver it is not necessary to resort to execution for appointment of Receiver to take effect. The Court Receiver can take all actions which he is authorised in law to do after his appointment. Rule 194 reads as follows: "194. Procedure on application for Procedure on application for Procedure on application for appointment of receiver.- appointment of receiver.- appointment of receiver.- Application for the appointment of a receiver of property, the subject matter of a suit, shall be made to the Court, and the Registrar shall, on issuing the order of appointment, forward to the Commissioner for taking accounts a certificate stating the name of such receiver and the conditions, if any, under which he has been appointed. In other cases a receiver may be :6: appointed by the Judge sitting in Chambers if the matter is one usually dealt with in Chambers." Under this Rule, it is obvious that the appointment of a receiver takes effect upon an order to that effect by the Court and the Registrar until forwards to the Commissioner for taking accounts, a Certificate stating the name of such receiver and the conditions if any, under which he has been appointed. The procedure does not defer the effect of the appointment of the Receiver till the Registrar forwards a Certificate to the Commissioner for taking accounts. The impugned order is therefore liable to be set aside and is accordingly set aside. There is however one aspect of the matter which requires reconsideration by the Court which passed the Order. 5. After the Court allowed the Notices of Motion in terms of prayer clauses (a) and (b) vide first paragraph of the Order, it is not understood why the Court passed the further Order in second paragraph in connection with ad interim relief. A reading of the second paragraph suggests that the receiver shall be appointed only on the failure of the defendant Nos. 3, 4, 5, 6 & 7 to comply with :7: terms of prayer clause (a) of each notice of motion. 6. None of the learned counsel of the parties is in a position to explain why this Order purported to be an order of ad interim relief was necessary after the main notice of motion is itself allowed in terms of prayer clauses (a) and (b). Mr. Godbole submits that it was to prescribe the mode of execution of documents. This does not explains why it should be an ad interim relief. 7. In the circumstances, the learned Judge who passed the Order dated 14.11.2007 is directed to reconsider and clarify the second paragraph of this Order to the following extent: ".........In connection with the ad-interim relief claimed vide prayer clause(b) in each Notice of Motion only on the failure of Defendant Nos. 3, 4, 5, 6 and 7 in Stamp No. 1819/07, Defendant Nos. 3 and 4 in Stamp No. 1820/07 and Defendant Nos. 3, 4 and 5 in Stamp No. 1821/07, to comply with the terms of prayer clause (a) of each Notice of Motion, the Court Receiver, Bombay be appointed with the direction to take the :8: possession of flats of all these Defendants, with the due notice as shown in prayer clause (b) of each Notice of Motion, belonging to Defendant No.1, situated at Sunder Nagar Complex, Kalina, Vidyanagari, Mumbai 400098, through the office bearers of Defendant Nos. 1 and 2...." 8. If the Court intended to prescribe the procedure according to which the Agreement should be executed then it could have been done by incorporating the said procedure in the final order allowing the notice of motion. There was no need to create any confusion by purporting to grant any ad interim relief. 9. Needless to say that the Court shall clarify the order after hearing the parties. Parties are directed to appear before the said learned Judge Shri S. B. Bhale who passed the Order, on 27th April, 2009 at 2.30 p.m. The Court shall clarify the Order within 15 days after the appearance of the parties. 10. It is clarified that further steps shall be taken by the Court Receiver only after the learned :9: Judge clarifies the Order dated 14.11.2007, as directed hereinabove. 11. Rule is made absolute in the above terms. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)