IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1465 OF 2006 CHAMBER SUMMONS NO.1465 OF 2006 CHAMBER SUMMONS NO.1465 OF 2006 IN EXECUTION APPLICATION NO.121 OF 1974 IN SUIT NO.517 OF 1966 The Board of Trustees of Port of Bombay ..Plaintiffs Versus Hafiza Begum A.H.Kadri & Ors. ..Defendants ---- Mr.E.P.Bharucha with Mr.N.Munjee i/by Mulla & Mulla and CBC for plaintiffs. Mr.P.V.Bhagat i/by S.M.Kadu for defendant no.1-B. Mr.Denzil D’mello for applicants. Mr.D.V.Deokar 1st Assistant to Court Receiver and Mr.C.B.Bhogaonkar 2nd Assistant to Court Receiver present. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 12.12.2006. PC 1. This is a Chamber summons taken out by the original plaintiffs in Suit No.517 of 1966 for a direction to the Court Receiver to hand over symbolic possession of the land and building which is subject matter of the decree dated 15.11.1967 to the plaintiffs and for a further direction that the Sheriff of Bombay be directed to execute the warrant of possession pursuant to the decree dated 15.11.1967 in accordance with the prescribed procedure after symbolic possession of the land and building was handed over to the plaintiffs. : 2 : 2. The decree in question was a composite decree for possession of the suit plot (vacant land) together with arrears of rent and compensation. The said decree was passed on 15.11.1967 and after passing of the said decree, execution proceedings no.121/74 came to be filed on 21.8.1974. It appears that in the execution proceedings the assistance of the Court was sought for issuing notice under Order 21 rule 22, issuing a writ of possession under order 21 rule 35 & 36 of Civil Procedure Code and for appointment of Receiver in execution of the suit property. 3. It appears from the record that the Receiver was appointed on 6.9.1976 with all powers under order 40 rule 1 of Civil Procedure Code. 4. The record indicates that after the Court Receiver took possession, several orders came to be passed on reports made by the Court Receiver and ultimately in these series of orders the orders dated 26.9.2006 read with a further order dated 10.10.2006 (both passed by Justice D.K.Deshmukh,J) have come to be passed under which the Court Receiver has been asked to hand over possession to the person from whom possession was taken. These orders were passed on a statement made by the Counsel for the original plaintiffs to the effect : 3 : that there was no order passed in execution of the decree according to which Receiver can take possession of the property to which the decree relates. 5. It was sought to be argued that the statement made by the Counsel was erroneous in view of a clear order passed by this Court while appointing the Receiver on 6.9.1976. In my view, the statement was not erroneous as there was no clear direction given by the Court for the Receiver to take possession as would be required under order 40(1)(B) of the Civil Procedure Code. The appointment of Receiver with all powers under Order 40(1) of Civil Procedure Code would necessarily means the powers which are conferred upon the Receiver would be the powers as mentioned under Order 41(1)(d). This being the position, I do not find any fault in the orders passed by this Court on 26.9.2006 and 10.10.2006. From the facts of this case, I find that after obtaining a decree on 15.11.1967, all that was required to be done by the plaintiffs was to get the same executed by following the procedure prescribed under Order 21 rule 35 & 36. Instead of that, the procedure followed was to obtain possession by getting a Receiver appointed and asking him to give possession to the plaintiffs. This resulted in several un-necessary legal complications. In my view, even if, the possession is handed over by the : 4 : Receiver to the person from whom possession was taken when he first took the possession, yet in execution, the plaintiffs will be entitled to obtain possession in accordance with order 21 rule 36 because the plaintiffs can only take symbolic possession of the plot since admittedly the lessee has constructed a structure there on and that structures have been occupied by several occupants who claim independent rights. Counsel appearing for the Judgment-debtors contended that execution application 121 of 1974 itself could not be said to be alive in view of rule 329 of the Original Side Rules which reads as under :- 329. When a party does not proceed with the application for execution for a period of twelve months from the date of the filing of application, the Prothonotary and Senior master shall place the application before the Judge in Chambers for dismissal for want of prosecution. The Judge may pass such orders thereon as he may think fit." . The contention has no substance because admittedly the said rule does not provide that a execution application is automatically dismissed if the party does not proceed for a period of one year and an order of Court is required under the said rule. There is no such order passed by the Court dismissing execution application no.121/74. Reliance was also placed upon rule 334 which is in my view does not apply to the present case as this is not a case of a warrant of sale not being issued : 5 : and also not a case where execution of the warrant or decree of the order has not been executed within 1 year, as no such warrant was issued at all. In my view, once leave is granted under order 21 rule 22 then the execution proceedings must proceed to its conclusion and cannot be said to cease to exist or be time barred by the rules which are quoted in support of the contention of the Judgment debtor. 6. In my view, not only the Chamber summons but the execution proceedings which is pending since 1974 can be partly dealt with by the following directions (a) Since the prayer in Chamber summons No.1465/2006 cannot be granted the said Chamber summons is dismissed. (b) The assistance sought in execution application 121/74 by way of issuing warrant of possession under order 21 rule 35 & 36 of the Civil Procedure Code is allowed in part and the Prothonotary and Senior Master will issue warrant of possession in respect of the suit plot (excluding built up structure thereon) under order 21 rule 36 and the decree will then be executed in accordance with law by following the procedure prescribed in order 21 rule 36. (c) That the handing over of the possession of the plot by the Receiver to the person from whom he had : 6 : taken possession should be simultaneous with the taking of possession under order 21 rule 36 of the Civil Procedure Code by the decree holders. (d) I am also making it abundantly clear that this order does not affect the rights of the occupants of Commerce House which is the structure which stand upon the suit land or the right of the plaintiffs to initiate proceeding in respect of the structure standing on the suit plot or any part thereof in accordance with law. (e) As regards the monetary part of the decree, it appears that earlier orders have been passed relating to deposit of rent/deposit and some of the occupants have filed suit in the City Civil Court. Needless to say that from the amount lying with the Court Receiver, it will have to be determined if the monetary part of the decree can be satisfied. In this respect, Court Receiver to take accounts and make make a report to this Court. His discharge will be considered after his report is submitted. Liberty to parties to apply. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)