pvr 1 a210-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.210 OF 2011 WITH NOTICE OF MOTION NO.1489 OF 2011 IN CHAMBER SUMMONS NO.1416 OF 2010 IN MISC.PETITION NO.22 OF 1999 Bhagwan Dilip Boral. ...Appellant vs. Menaka B.Bhatia (since deceased) and others. ...Respondent --- Mr.K.Kharawala i/b. R.K.Associates, for Appellant Mr.S.K.Jain with Mr.H.E.Engineer i/b. Gordhandas & Fozdar, for Respondent no.3. Respondent no.2 present in person. --- CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATED: 4th July,2011. pvr 2 a210-11 P.C.:- 1. Admit. Heard finally by consent of parties. 2. The facts that are relevant for deciding this appeal are that one Menaka B.Bhatia filed Miscellaneous Petition no.22 of 1999 in this Court under Section 20 of the Hindu Adoptions and Maintenance Act,1956, claiming that she is entitled to receive maintenance from Bhagwan Dilip Boral and Nandraj Dilip Boral, who were sons of said Smt.Menaka from her husband Mr.Dilip. When Miscellaneous Petition no.22 of 1999 was filed, Smt.Menaka was not married to Mr.Dilip, but she was married to somebody else. However, she claimed that her two sons viz. Mr.Bhagwan and Mr.Nandraj are liable to maintain her. In Miscellaneous Petition no.22 of 1999, consent terms were arrived at. Both the sons pvr 3 a210-11 agreed that Smt.Menaka is entitled to 1/3rd share in flat no.8 situated at Apna Ghar Housing Society, 2nd floor, Colaba, Mumbai, towards her maintenance . The parties agreed that the flat should be sold and 1/3rd amount of the sale proceeds, after paying the outgoings, should be paid to Smt.Menaka. The Miscellaneous Petition was decreed in terms of the consent terms by order dated 14.3.2000. It appears that though the method of sale of the flat was agreed by the consent terms, by that method the flat was not sold and Smt.Menaka, instead of filing execution proceedings for executing the consent decree, had taken out Notice of Motion no.3555 of 2008 in this Court. That notice of motion was disposed of by order dated 12.2.2009. By that order, the Taxing Master of this Court was appointed to sell the flat by inviting offers. Accordingly, steps were taken by the Taxing Master to sell the flat. While the process of sale of the flat was going on, Smt.Menaka expired on 26.6.2010. At this pvr 4 a210-11 juncture, one Raji Nathwani took out Chamber summons no.1416 of 2010 praying for several reliefs. The first relief claimed was that she should be brought on record as heir of deceased Smt.Menaka and she claimed several reliefs in relation to the flat. That chamber summons was opposed by the present appellant who had objected to the maintainability of the chamber summons and also entitlement of the applicant Ms.Raji Nathwani to maintain any proceedings for the reliefs that are claimed in the chamber summons. The learned Single Judge of this Court has disposed of the chamber summons by order dated 5.1.2011. The learned Single Judge has granted the chamber summons in terms of prayer clauses (a) and (b). Prayer clauses (a) and (b) of the chamber summons read as under:- (a) that the Applicant be brought on record of the above Petition as Petitioner in place and stead of the Petitioner pvr 5 a210-11 Menaka B. Bhatia (since deceased). (b) That the Applicant be allowed to carry out amendments in the Petition as per Schedule hereto; The learned Single Judge has also held that applicant Ms.Raji is entitled to 1/9th share in the amount of the sale proceeds of the flat. The present appeal is filed by the original respondent no.1 Mr.Bhagwan Dilip Boral challenging that order. 3. We have heard the learned Counsel appearing for both the sides. Our attention was invited by the learned Counsel appearing for appellant to the judgment of the Full Bench of this Court in the case Romila Jaidev Shroff Vs. Jaidev Rajnikant Shroff, 2002(1) All MR 185 to claim that the proceedings executing the consent decree passed in Miscellaneous Petition no.22 of pvr 6 a210-11 1999 do not lie in this Court. It was also claimed that the property originally owned by Mr.Dilip Boral who is father of Bhagwan D.Boral and Nandraj D.Boral and was not related to the applicant Ms.Raji. It was further claimed that because a share was agreed to be given in the flat to Smt.Menaka towards her maintenance, after her death, heirs of Smt.Menaka would not be entitled to any share in the sale proceeds of the flat. It was claimed that in view of the judgment of the Full Bench of this Court referred to above, the order passed in the Chamber summons is completely without jurisdiction. The fact, however, remains that rightly or wrongly pursuant to the order passed by this Court which of course passed by consent of parties, the flat has been sold and the sale proceeds are with the Taxing Master. There is also no dispute about entitlement of Mr.Bhagwan and Mr.Nandraj to receive shares in the amount of the sale proceeds. The only dispute between the parties is pvr 7 a210-11 that  Whether Ms.Raji would be entitled to get any share in the sale proceeds of the flat . In this situation, taking overall view of the matter therefore, in our opinion, the following order would meet the interest of justice:- (a) The learned Advocate appearing for the appellant-Bhagwan has stated before us that within a period of two weeks from today, Bhagwan will file proceedings for execution of decree passed in Misc. Petition no.22 of 1999, in the Family Court, Mumbai. On Bhagwan producing proof before the Taxing Master of this Court that he has filed execution proceeding in the Family Court, Mumbai, the Taxing Master shall permit appellant -Bhagwan to withdraw Rs.Fourty Five lacs from the amount of the sale proceeds. The Taxing Master shall permit respondent no.2  Nandraj also to withdraw Rs.Forty Five lacs from the amount of the sale proceeds. pvr 8 a210-11 (b) Both Bhagwan and Nandraj have given their consent, without prejudice to their rights and contentions, to permit Raji to withdraw an amount of Rs.Five Lacs from the amount of the sale proceeds, subject to her giving an undertaking to the Family Court that she will bring back the said amount if she is directed by the Family Court. (c) Respondent no.3  Raji shall be free to take up the proceedings before the Family Court for establishing her share in the sale proceeds of the flat. In case such application is made by Raji, the Family Court shall deal with it in accordance with law. (d) The balance amount that remains with the Taxing Master shall be transferred by the Taxing Master to the credit of the execution proceedings in the Family Court. The Family Court shall keep that amount in the Fixed Deposit in any pvr 9 a210-11 nationalised Bank till the disposal of the execution proceedings. (e) Respondent no.3  Raji shall be at liberty to apply the Family Court to permit her to withdraw more amount. In case, such application is made, the Family Court shall decide it in accordance with law after giving opportunity of being heard to Bhagwan and Nandraj. (f) The order challenged in this Appeal is set aside. Appeal stands disposed of. (g) In view of disposal of Appeal, Notice of Motion no.1489 of 2011 does not survive and the same stands disposed of. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.) ---