KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1165 OF 2010 IN SUIT NO.2947 OF 2007 Avinash Karnik .. Plaintiff V/s. Ajit B. Karnik & Ors. .. Defendants ---- Mr.S. P. Dalal for the Plaintiff. Mr.V. Bodke i/by Chitnis Vaity & Co. for Defendant nos.1 to 3. Mr.M.C.Phal for the defendant no.5. ---- CORAM : R.S.MOHITE, J DATE : 12/7/2010 P. C.: 1 This is a Notice of Motion taken out by the original plaintiff for appointment of Court Receiver and for injunction against creating third party rights. The grievance made in the affidavit-in- support is that the defendant no.2 who was a nominee of the deceased Nalini Karnik has sold the property to the defendant no. 5. On behalf of defendant no.5, an affidavit in reply is taken on record. Advocate for the defendant nos.1 & 2 admits that defendant no.2 has sold the property to defendant no.5 under a transfer deed dated 16.5.2007. Although an ad-interim injunction KJ 2 against creating third party rights has earlier been granted in Notice of Motion No.3986 of 2007, it is seen that there was no prayer for Receiver in that Motion. 2 Subsequently, the plaintiff took out a Chamber summons being Chamber Summons No.68 of 2010 for bringing defendant nos.6, 7 & 8 on record and although in that Chamber summons there was a prayer for appointment of Receiver, Chamber summons was allowed only in terms of prayer clause-(a) which pertain to bringing defendant nos.6, 7 & 8 on record and was disposed off with liberty to the plaintiff to take out separate Notice of Motion. In such circumstances, present Notice of Motion has been taken out. 3 In my view, on the facts as disclosed, defendant no.5 appears to be a person in whose favour the document has been executed only by the nominee who is not an heir since defendant no.1 who is the father of defendant no.2 is still alive. In the circumstances, since defendant no.5 is residing in the suit premises on the basis of KJ 3 what prima facie appears to be a defective title, I am inclined to allow the prayer for Receiver subject to conditions. Notice of Motion is therefore, made absolute in terms of prayer clause-(a) subject to the condition that the Court Receiver to take only formal possession and will appoint defendant no.5 who is admittedly in actual physical possession, as an agent of the Court Receiver subject to royalty but without security. Notice of Motion stands disposed off. (R.S.MOHITE,J.)