SRJ 1 wp-2152-10(group).sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2491 OF 2010 WITH WRIT PETITION NO.2490 OF 2010 State Trading Corporation of India Limited .. Petitioners vs. Annapurna Properties & Others .. Respondents. WRIT PETITION NO.2490 OF 2010 WITH WRIT PETITION NO.2491 OF 2010 State Trading Corporation of India Limited .. Petitioners vs. Shashiprabha Bajoria .. Respondent. WRIT PETITION NO.2153 OF 2010 The State Trading Corporation of India Limited .. Petitioners vs. Ravinder Singh Sehgal & Others .. Respondents. CIVIL APPLICATION NO.877 OF 2010 WITH CIVIL APPLICATION NO.811 OF 2010 IN WRIT PETITION NO.2152 OF 2010 The State Trading Corporation of India Limited .. Petitioners vs. Godavari Devi Agarwal .. Respondent. Mr. D. Roy Chowdhary, Sr. Counsel with Mr. Hemant Prabhalkar and Mr. D.G. Dhanure i/b. Jurisconsults, for the Petitioner in Writ Petition No.2152 of 2010. Mr. D. Roy Chowdhary,Sr. Counsel with B.G.Saraf, for Petitioners in Writ Petition No.2490 of 2010 and Writ Petition No.2491 of 2010. SRJ 2 wp-2152-10(group).sxw Mr. S.M.Kazi, for Respondent No.1 in Writ Petition No.2490 of 2010 and Writ Petition No.2491 of 2010. CORAM :A.S.OKA,J. DATE :1st APRIL,2010. P.C.:- 1] Heard Senior Counsel appearing for the Petitioners and the Learned Counsel for the Respondents. The facts leading to filing of these Petitions are more or less identical. The Petitions arise out of the decree for possession passed against Petitioner  State Trading Corporation of India in four separate suits. The challenge in these Petitions under Article 227 of the Constitution of India is to the orders passed in execution of the decree. As the facts of the case in the Petitions are identical, for convenience a reference has been made to the facts of the case of Writ Petition No.2152 of 2010. 2] The Respondent is the Plaintiff and the Petitioner is the Defendant/Judgment Debtor. The Respondent filed a suit for possession under section 41 of the Presidency Small Cause Courts Act, 1882, against Petitioner. According to the case of the Respondent, she was the owner of the suit premises bearing no.601, having area of 1000 square feet on the 6 th Floor of the building known as Maker Chamber-IV, Nariman Point, Bombay. According to the case of the Respondent, the Petitioner was allowed to use and occupy the suit premises at the rate of Rs.7/- per square feet. The Respondent relied upon SRJ 3 wp-2152-10(group).sxw the Agreement dated 11 th September, 1980 entered into with the Petitioner. The Tenancy of the Petitioner was terminated by a notice issued in 2002. It is contended that in view of section 3 (i) (b) of the Maharashtra Rent Control Act, 1999, the Petitioner Company has no protection of the said Act as Petitioner Company is having more than one crore paid up share capital. Reliance was placed on various documents in the plaint including a sketch of the 6 th Floor on which the suit premises has been demarcated. The said sketch was annexed to the plaint. The suit was contested by the Petitioner. The Petitioner denied the status of the Respondent as a landlady. The Petitioner stated that original agreement of tenancy dated 11 th September, 1980 was executed by one Madhulika Bajoria in respect of the total area of 1500 square feet which was numbered as the unit no.603. Thus, a dispute was raised by the Petitioner of the existence of the landlord-tenant relationship. The Trial Court decreed the suit by accepting the case of the Plaintiff. An appeal preferred by the Petitioner before the Appeal Bench of the Court of Small Causes has been dismissed. It is not in dispute that matter was carried to upto the Apex Court and the decree for possession has become final as of today. In the present Writ Petition, the challenge is to the order passed by the Trial Court in Execution Application filed by the Petitioner. The impugned order 8 th March, 2010 refers to the earlier order in the Execution Application passed on 30 th January, 2010 by which an Architect was SRJ 4 wp-2152-10(group).sxw appointed as a Commissioner to demarcate the suit premises as per the sketch annexed to the Plaint. By the impugned order dated 8 th March, 2010 the said Architect was appointed as Court Commissioner for the same purpose. Warrant of possession was also issued under the impugned order and a Special Bailiff was appointed to execute the Warrant. 3] The Learned Senior Counsel appearing for the Petitioner pointed out that objections under section 47 of the Code of Civil Procedure, 1908 were raised by the Petitioner and the said objections were rejected by the Trial Court. He pointed out that an appeal has been preferred against the said order which is pending. He pointed out that the order passed under section 47 of the said Code is not the subject matter of challenge in this Petition and the challenge is confined to the aforesaid order dated 8 th March, 2010. 4] His basic submission is that there is no executable decree passed by the Trial Court and there is no provision under order XXI of the said Code to appoint an Architect for executing a decree for possession. He pointed out that the Petitioner obtained possession of various premises on the 6 th Floor of the building and has made one office premises by amalgamating the said premises. He submitted that in the decree for possession, there is no identification of the suit premises. He pointed out that the sketch of the suit property does not form part of the decree and in the decree, there is no SRJ 5 wp-2152-10(group).sxw description of the suit premises which can be easily identified. He pointed out that initially a warrant of possession was issued by the Executing Court and the Court Bailiff submitted a report to the effect that he could not identify suit premises in respect of which the warrant was issued. The Learned Counsel further submitted that in fact, the report records that the authorized representative of the Plaintiff was not able to identify the suit premises. He submitted that in view of the report of the bailiff, before passing further order, it was the duty of the Executing Court to hear the Petitioner. He submitted that the basic case of the Petitioner is that there are no separate tenancies in respect of premises on the 6 th floor and there is only one tenancy as a result of the amalgamation of the various premises on the 6 th floor. He placed reliance on clause (d) of section 111 of the Transfer of Property Act, 1882. In that behalf, reliance was placed on a decision of the Apex Court in the case of Badri Narain Jha & Others vs. Rameshwar Dayal Singh & Others (AIR (38) 1951 S.C.186). He also placed reliance on a decision in the case of Chapsibhai D. Dand vs. Purushottam (AIR 1971 SC-1878). He submitted that as the decree does not contain the description of the suit premises, the act of appointing a Court Commissioner to demarcate the suit property amounts to going behind the decree which is not permissible in law. He also placed reliance on a decision of the Apex Court in the case of Century Textiles Industries Ltd., vs. Deepak Jain and SRJ 6 wp-2152-10(group).sxw another [(2009)5-SCC-634]. He placed reliance in the case of Deepa Bhargava and another vs. Mahesh Bhargava and others [(2009) 2- SCC-294]. Lastly, he submitted that on the basis of objection raised by the Respondent by filing Civil Application no.811 of 2010, a sum of Rs.1,62,25,000/- has been deposited by the Petitioner with the Trial Court without prejudice to its rights and contentions. 5] I have given careful consideration to the submissions. The decree for possession passed against the Petitioner has been upheld by the Apex Court. The perusal of the Plaint in which decree for possession has been passed shows that paragraph 1 thereof clearly describes the suit premises admeasuring 1,000 square feet on the 6 th Floor of the building. A reliance has been placed in the Plaint on a sketch of the suit premises. The sketch annexed to the Plaint at Exhibit  A has been referred in paragraph 1 of the Plaint. The perusal of the sketch annexed at Exhibit  A shows that it is a complete lay out of the 6 th floor showing divisions of the 6 th Floor on which the suit premises is situated. The areas of various premises and the suit premises have been clearly marked on the said sketch. The suit premises has been demarcated on the sketch. It will be interesting to note what is stated by the Petitioner in respect of the description of the suit premises having area of 1,000 square feet which is shown in sketch at Exhibit  A annexed to the Plaint. Paragraph 18 of the Written Statement deals with the SRJ 7 wp-2152-10(group).sxw paragraph 1 of the Plaint. It is not disputed that the sketch has been placed on record, but what is contended is that a copy of the sketch is not given to the Petitioner. Only contention raised in response to the paragraph 1 is that the Respondent has failed to prove ownership of area 1,000 square feet by producing documents. In paragraph 4 of the Written Statement, the Petitioner has stated that:- The Defendant submits that the original agreement dated 11.9.80 for lease was signed by Mrs. Madhulika Bajoria for a total area of 1500 s.q.ft. and was numbered as unit 603. A copy of the said agreement is annexed hereto as Annexure D/1. Vide letter dated 31.5.1983, Mrs. Madhulika Bajoria however informed the Defendant that the said area was divided into two owners and one of them was Mrs. Godavari Devi Aggarwal, the present plaintiff, who was then given 1000 sq.ft. from the total area of 1500 sq.ft. from June 1 st 1983 onwards, Mrs. Godavari Devi is collecting rent for the aforesaid premises comprising of 1000 Sq.Ft. which was given new office number as 601. Rent was collected by the Plaintiff from the Defendant as per the rates decided in the agreement dated 11.9.1980. It is pertinent to mention that the suit premises were occupied by the Defendants with effect from June 1 st 1983 and not from January 1 st 1982 as stated in the plaint. (underlines supplied) SRJ 8 wp-2152-10(group).sxw 6] The decree passed by the Trial Court is in respect of the suit premises set out in the plaint. The description of the suit premises is given in paragraph 1 of the plaint which refers to the sketch annexed at Exhibit  A which shows the demarcation of the suit premises. The decree for possession has became final in the sense that the challenge to the decree upto to the Apex Court has failed. 7] A possession warrant was already issued. The bailiff found it difficult to demarcate the area of 1,000 square feet of the suit premises. The Petitioner s case is that tenancy was taken in respect of the various premises on the 6 th floor from different persons and they have converted all the premises in to one office. That does not entitle the Petitioner to defeat the claim of the respective landlords. Under the impugned order a Special Bailiff has been appointed for execution of the decree. An Architect from the panel appointed by the Court has been appointed as a Court Commissioner to ensure that the suit premises in respect of which the decree for possession is passed is properly identified and demarcated as per the sketch annexed to the plaint at the time of execution of the possession warrant. 8] Thus, taking overall view of the matter, it is obvious that there is sufficient description on record of the suit for identifying suit premises. The appointment of an Architect has been made to ensure that the decree is SRJ 9 wp-2152-10(group).sxw executed by the Court bailiff in accordance with the description of the suit premises in the plaint. This is not a case where interference can be made in the impugned order in Writ Jurisdiction under article 227 of Constitution of India. A decree which has become final cannot be allowed to be defeated by raising such objections. As far as deposit of the amount by the Petitioner is concerned, the same will not create any equity in favour either parties. The said amount has been deposited on the basis of interim order passed during pendency of the proceedings. 9] It must be clarified that this Court has not dealt with objections raised under section 47 of the separate code as separate appeal is pending in that behalf. No case is made out for interference. Writ Petitions are accordingly rejected. 10] At this stage, Learned Senior Counsel appearing for the Petitioner prays for continuation of ad-interim relief. The prayer is opposed by the Advocate for the 1 st Respondent. As a copy of this judgment cannot be immediately available, ad-interim relief granted earlier will continue for the period of eight weeks from today. (A.S.OKA,J.)