1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL(L) NO. 794 OF 2007 IN NOTICE OF MOTION NO 2169 OF 2005 IN SUIT NO. 2043 OF 2005 IN COURT RECEIVERS REPORT NO. 172 OF 2007 Neeru Bipin Gandhi .. Appellant Versus Aruna A. Dholakia and others .. Respondents Mr K. P. Ravi for the appellant Mr. Prakash Shah i/by M/s Prakash & Co. for respondents Court Receiver Shri P.L. Vyas Present CORAM : B.H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. DATE : 4 th March, 2010 P.C.: 1. This intra Court Appeal is directed against the order dated 25 th July, 2007 passed by the learned Trial Judge on the Court Receiver’s Report No. 172 of 2007 filed in Suit No. 2043 of 2005. Suit No. 2043 of 2007 came to be filed by Smt. Aruna A. Dholakia and the appellant was impleaded as defendant No.4 in the said suit. The suit was for specific performance of the agreement executed between the plaintiff and defendant No.4 for the purchase of Flat no. 403 situated on 4 th floor, “B”- 2 Wing, Avni Apartment, off M.G.Road, Kandiwali, Village Charkop, Mumbai 400 067 and the plaintiff had also prayed for appointment of Court Receiver in respect of the suit flat, pending the suit. 2. On 28 th March, 2007, the learned trial Judge passed an order in Notice of Motion No. 2169 of 2009 filed in the said Suit and appointed the Court Receiver who was directed to take symbolic possession of the said flat from defendant no.4 and it was further directed to appoint Respondent/defendant no.4 as an agent of the Court Receiver. This order further stated that the amount of royalty was fixed at Rs.10,000/- per month and in case the royalty fixed shall be less than Rs.10,000/- per month then the defendant shall pay royalty fixed by the Court Receiver and till the royalty was fixed by the Court receiver, the defendant No.4 shall pay Rs.7500/- per month. 3. The Court Receiver has submitted his report and pointed out that the appointment with the parties was fixed on 24 th April, 2007 as per the letter dated 18 th April, 2007 to execute the order passed by this Court on 28 th March, 2007, but the appointment could not be materialized as the advocate representing defendant no.4 was hospitalized. On 30 th April, 2007, another letter was addressed to the parties to fix the appointment on 3 rd May, 2007 and when the representative of the Court receiver visited the Suit flat on 3 rd May, 2007, defendant No.4 was not in 3 occupation of the suit flat and instead one Mrs. Nisha Mohan Koli alongiwth her two children and her mother was seen occupying the flat and she said that she was staying in the said flat for the last one year without any agreement. The report further stated that Mrs. Koli and her husband refused to handover the symbolic possession of the flat and did not permit the Court Receiver to enter into the flat. 4. On 12.7.2007, the learned trial Judge recorded that the suit premises was locked when the Court Receiver went to serve the report, therefore the Court Receiver was directed to serve the third party by pasting notice on the door of the flat. This was done and the said notice clearly informed that the Court Receiver’s report would be considered by the Court on 25.7.2007. None of the defendants appeared before the Court on 25.7.2007 and, therefore, by the impugned order, the learned trial Judge was pleased to accept the Court Receiver’s report in terms of paragraphs 4(a) and (c). 5. Consequently, the Court Receiver fixed an appointment on 16 th August, 2007 and the representative of the Court Receiver took physical possession of the suit flat alongwith terrace and the premises were looked and the sealed. A meeting was held on 8 th February, 2008 to appoint the Court Receiver’s Agent and Shri Bhagwat Rai came to be appointed as an agent of the Court receiver on payment of royalty of Rs. 4 11,000/- per month. The suit flat came to be handed over to the said Mr. Rai on 20 th August, 2008. 6. Subsequently, on 18 th June, 2009, the learned Trial Judge directed the Court Receiver, acting on Court Receiver’s Report No. 149 of 2009 dated 4.5.2009, to take forcible possession of the Suit Flat, if the arrears of the royalty amount were not paid within one week. Consequently, the Court Receiver fixed an appointment on 3 rd July, 2009, and took forcible possession of the suit flat with the help of police and the suit flat has been locked and sealed. 7. In this changed circumstance, we do not see any reason to entertain this appeal and the parties are at liberty to approach the trial Judge with a fresh application for appointment of agent of the Court Receiver. 8. Even otherwise, we are satisfied that the order does not suffer from any error and hence the appeal must fail. 9. The appeal is dismissed. (SMT. V. K. TAHILRAMANI, J.) (B.H. MARLAPALLE, J.)