1 caf4825-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO.4825 OF 2010 IN FIRST APPEAL NO.1910 OF 2010 Jyotindra B. Trivedi & Anr. .. Applicants V/s. Sudhir M. Kulkarni & Anr. .. Respondents ..... Mr. Rahul P. Walvekar for the applicants. Mr. R. M. Haridas i/b. Mr. Sumit Khaire for respondent No.1. ..... CORAM : A. S. OKA, J. DATE : MAY 4, 2011. P.C.:- Heard the learned counsel appearing for the applicants and the learned counsel appearing for the first respondent. This is an application made by the applicants (original defendants) for stay of execution and operation of the impugned decree for specific performance in respect of a residential flat. In terms of the decree, the respondents-plaintiffs have deposited the balance consideration of Rs.12,00,000/-. 2. On 28th January, 2011, this Court granted ad-interim relief of stay of execution of the decree subject to condition that the applicants/defendants will not create any third party rights and will not 2 caf4825-10 part with possession of the suit flat. When the said order was passed, a licencee Smt. Sharmila Nerkar was in possession of the suit flat under an agreement of leave and licence dated 3rd May, 2010. It is not in dispute that after ad-interim relief was granted by this Court, the term of the licence expired and the applicants have renewed the term of the licence by a further period of 5 years. In view of clause (3) of the ad-interim order dated 28th January, 2011, the applicants could not have extended the term of the licence after its expiry. Prima facie, the said action of the applicants is in breach of the condition imposed by this Court while granting ad-interim stay. 3. Appeal has been admitted and is likely to be remain pending for a long time of more than ten years. Considering the aforesaid conduct of the applicants, though stay deserves to continue, a Receiver of the suit flat will have to be appointed for collecting licnece fees. 4. Hence, I pass following order : :: O R D E R :: i. Ad-interim relief granted on 28th January, 2011, will continue to operate as interim relief with following modifications. 3 caf4825-10 ii. The trial Court shall appoint any of its officer as the Court Receiver of the suit flat. The Court Receiver will take formal possession of the suit flat without disturbing the licencee in possession. iii. The Receiver shall collect the licence fees from the licencee in terms of the agreement of leave and licence. The applicants will hand over a true copy of the leave and licence agreement to the Court Receiver. iv. Out of the licence fees collected from the licencee, the Court Receiver shall pay maintenance charges and outgoings in respect of the suit flat. v. The trial Court shall fix the remuneration of the Court Receiver. The remuneration amount shall be recovered by the Court Receiver from the licence fees collected from the licencee. vi. After deducting the maintenance charges, outgoings 4 caf4825-10 and Receiver's remuneration, the balance amount of licence fees collected by the Court Receiver shall be deposited with the trial Court and the said amount shall be invested by the trial Court in fixed deposit till the final disposal of the Appeal. vii. On expiry of leave and licence agreement, the Court Receiver shall take over the possession of the suit flat. After taking over the possession of the suit flat, the Court Receiver shall submit a report to this Court and after receipt of the report, this Civil Application shall be placed before appropriate Court for passing further directions on the basis of the report. viii. The consideration amount deposited by the respondents-plaintiffs shall be invested in fixed deposit till the final disposal of the Appeal. If the Court Receiver finds that there is no agreement in writing regarding the renewal of the term of the licence, the Court Receiver shall submit a report to this Court and the report shall be placed before this Court for issuing necessary directions. 5 caf4825-10 ix. Civil Application is disposed of on the above terms. JUDGE