1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1252 OF 2009 IN SUIT NO.4913 OF 2000 Majid Ahmed Oomerbhoy .. Plaintiff. Vs. Rashid Sattar Oomerbhoy & Ors. .. Defendants. Mr.Rahul Nari Chania i/b Desai, Desai & Carimjee for defendant no.1/ applicant in support. Mr.Z.A.Jariwala i/b Thakore Jariwala & Associate for the plaintiff to show cause. Mr.N.A.Bandodkar, 2nd Asst. to Court Receiver is present. CORAM : R.M.SAVANT, J. DATED : APRIL 5, 2011. PC: 1. By the above chamber summons, the defendant no.1 prays for the following reliefs: “(a) That this Hon’ble Court be pleased to direct the Court Receiver Respondent to comply with the Order dated 15th November, 2006 passed by this Hon’ble Court in Chamber Summons No.916 of 2006 and to take appropriate steps immediately and in any event within a period of 30 days hereof to set aside the Exparte Decree dated 29th January, 2005 passed by the Small Causes Court in RAE & R Suit No.460/829 of 2002. S 2 (b) That in the alternative to prayer (a) above, Defendant No.1 be permitted to take appropriate steps to set aside the Ex-partee Decree dated 29th January, 2005 passed by the Small Causes Court in RAE & R Suit No.460/829 of 2002 as contemplated in the order dated 15th November, 2006 passed by this Hon’ble Court in Chamber Summons No.916 of 2006 on behalf of the Respondent which costs and expenses for the said proceedings being reimbursed to the Defendant No.1 from the funds of the Suit firm lying with Respondent.” 2. In the context of reliefs sought that it will be relevant to note the directions as contained in the order dated 15.11.2006 passed by R.S.Mohite, J., (as his lordship then was). The said directions are contained in paragraph 4 of the said order which is reproduced hereinunder: “4. In my view, since the Court Receiver was appointed by order of this court dated 6.12.2000 the property in question is in possession of the Court Receiver and therefore, no decree could have been executed without making the Court Receiver as party to the proceeding. It is now the stand of the respondent no.2 that after taking possession he gave tenancy to his son who in turn has given the possession to respondent no.4 on leave and licence basis. In my view, once taking of possession is improper, the creation of further rights in the 3 property are illegal and bad in law. No party in respect of whom illegal rights have been created can be permitted to claim any right in equity or law. The possession of the property must be taken back by the Court Receiver appointed by this court. The advocate for the defendant states that he has taken possession as a licensee without the knowledge of the claims thereof. He seeks 90 days time to make the alternative arrangement. In the circumstances, chamber summons is made absolute in terms of prayer clause (a) as the Advocate for the defendant no.4 has filed undertaking dated 15.11.2006 in this court to the effect that he will handover the vacant and peaceful possession of the property in question after 90 days from today. Undertaking is accepted. The Court Receiver will not execute this order for a period of 90 days only. It will be open for the Court Receiver to move the Small Causes Court for setting aside the exparte decree and he will be entitled to engage an advocate. Chamber Summons stands disposed off.” 3. The said directions were issued in the context of the property being custodia-legis and the suit filed by the landlord being RAE & R Suit No.460/829 of 2002 was filed without joining the Court Receiver as a party to the said suit. The decree passed, therefore, without the Court Receiver being made a party to the said suit is unsustainable. 4 4. Learned counsel appearing for the plaintiffs and the learned counsel appearing for defendant no.6 stated that the Court Receiver has in fact taken back possession of the shop- cum-godown situated at 164/166, Bapty Road, Mumbai and is presently under lock and seal. The representative of the Court Receiver – Shri Bandodkar also states that possession has been taken but he is not aware whether the premises are under lock and seal. Be that as it may, since the possession has already been taken the Court Receiver to take steps to get the decree set aside by by filing appropriate proceedings. The same to be done by 5th May, 2011 and a report to be submitted to this court on 5th May, 2011 which would be taken up for consideration on the said date. 5. Chamber Summons is accordingly disposed of. (R M SAVANT, J.)