AJN 05-OS-APP284.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.284 OF 2011 Virendra Chunilal Doshi & Anr. ... Appellants Vs. Jayesh Chunilal Doshi & Anr. ... Respondents Ms. Rajani Iyer, senior counsel with Mr. S. Pai for the appellants. Mr. N.N. Vaishnava for respondent 1. Ms. Barsha Parulekar with Mr. Deepak Thakkar for respondent 2. CORAM: MRS. RANJANA DESAI & R.G. KETKAR, JJ. DATED : 5TH MAY, 2011. P.C.:- 1. The appellants are the plaintiffs in the suit being Suit No.2220 of 2009 filed for dissolution of the partnership firm. Notice of Motion No.3108 of 2009 was taken out by the plaintiffs praying inter alia for appointment of the Court Receiver for all the moveable and immoveable assets of the partnership firm, which includes Flat No. 15-1, situated at Shatrunjay Shrihind Co-operative AJN 05-OS-APP284.11 2 Housing Society Limited, Sion, Mumbai – 400 022 (for short, “the said flat”). By the impugned order, learned Single Judge has directed that the notice of motion should come up for hearing in due course. Being aggrieved by the said order, the appellants have preferred this appeal. 2. We have heard learned counsel appearing for the parties. Ms. Iyer, learned senior counsel appearing for the appellants strenuously contended that the property in question particularly the said flat needs to be protected as third party interest is likely to be created in it. 3. Our attention is drawn to order dated 8/3/2011 passed in Appeal No.373 of 2009 by Division Bench presided over by Justice D.K. Deshmukh. By the said order, the order passed by learned Single Judge directing the Court Receiver to hand over possession of the said flat to the parties from whom the possession is taken, is maintained. The Court Receiver was further directed not to act pursuant to the said order, for a period of eight AJN 05-OS-APP284.11 3 weeks from the date of the said order subject to the condition that the appellant therein i.e. respondent 2 herein files an undertaking to this court that unless he is able to secure appropriate order from the competent court of law which enables him to continue to be in possession of the said flat, he will peacefully handover the possession of the said flat to the Court Receiver, who in turn, shall hand it over to the party entitled to possess the said flat pursuant to the order passed by learned Single Judge. 4. Counsel for respondent 2 has not been able to show that he has been able to secure any order from the competent court which enables his client to continue to be in possession of the said flat. In view of the undertaking given by respondent 2 and considering the fact that the impugned order is an ad-interim order and the motion will have to be finally heard on merits and considering the fact that counsel for the appellants and counsel for respondent 1 have no objection to this court passing the following AJN 05-OS-APP284.11 4 order, we proceed to pass the same, which should replace the impugned order and should be treated as ad-interim order: 5. The suit premises are in possession of respondent 2. As per the undertaking of respondent 2 recorded by this court by order dated 8/3/2011 passed in Appeal No.373 of 2009, defendant 2 shall handover possession of the flat in question to the Court Receiver. The Court Receiver, in turn, shall appoint respondent 1 as his agent on usual terms and conditions. This shall protect the property during the interregnum. This order is passed without prejudice to the rights and contentions of the parties. 6. In view of this, appeal is disposed of. 7. The Court Receiver to act on the authenticated copy of this order. [MRS. RANJANA DESAI, J.] [R.G. KETKAR, J.]