IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1923 OF 2004 IN EXECUTION APPLICATION (LODGING) NO.447 OF 2004 IN SUIT NO.1205 OF 1978 Mohamed Hanif Gaya ...Plaintiff Versus Sybil Mary Gracious & Ors. (All deceased) ...Defendants And Iris Gracious & Ors. ...Respondents ...... Mr.M.A.Shah i/b Mr.A.G.Shah for Plaintiff. Mr.Yadunath Chaudhari i/b Mr.Vimal Tiwari for Respondent No.3. Mr.P.D.Patankar, Representative of Court Receiver is present. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JULY 13, 2005. JULY 13, 2005. JULY 13, 2005. P.C. P.C. P.C. 1. Heard Counsel for the parties. The : 2 : Plaintiff had filed Suit being Suit No.205 of 1978 against the Defendants in the year 1978. That Suit has been decreed on 13th April 1993. The relevant portion of the decree reads thus : "AND THIS COURT DOTH ORDER AND DECREE that the defendants Nos.1 and 2 to execute the said agreement containing the aforesaid provisions as per the draft Exhibit ‘B’ to the Plaint alongwith the provisions mentioned in Exhibit ‘D’ to the Plaint and hereto annexed as Schedule 1 and 2 respectively AND THIS COURT DOTH FURTHER ORDER AND DECREE that the defendants shall specifically perform the agreement in terms of the draft Exhibit ‘B’ to the plaint alnogwith the provisions mentioned in Exhibit ‘D’ to the Plaint hereto annexed as Schedule 1 and 2 respectively and to let out to the Plaintiff the flat on the north side on the 2nd floor of the building under construction on the plot of land more particularly described in Exhibit ‘A’ to the Plaint and hereto annexed as Schedule 3 AND THIS COURT DOTH LASTLY ORDER that the Court Receiver is appointed in execution of this decree who shall take steps for execution of this agreement and execution of the decree by calling upon the Defendants herein to take necessary steps in accordance with this decree AND that the Court Receiver thereafter stand discharged without passing accounts AND that the charges of the Court Receiver, if any, to be borne by the Plaintiff". 2. The Defendants have, however, expired before the decree could be executed. The Plaintiff : 3 : had filed Notice of Motion No.419 of 1980 and Notice of Motion No.460 of 1980 for injunction against the Defendants. Those Notices of Motion were rejected, consequent to which, Plaintiff filed appeal before the Division Bench of this Court being Appeal No.137 of 1998. The relevant portion of the order passed by the Division Bench dated 28th April 1980 reads thus: "In Notice of Motion No.460 of 1980, pending the hearing and final disposal of the Appeal the Court Receiver appointed Receiver of Flat No.5 on the South Western side of the second floor of the building in suit with all powers under Order XL rule 1 of the Code of Civil Procedure, 1908. The Court Receiver to give possession of the said Flat as his agent to the Appellant pending the hearing and final disposal of the suit and for the said purpose to remove from the said flat any one who might be in the said Flat or any part thereof. It is clarified that the said flat no.5 consists of two rooms, two balconies, a kitchen, a bathroom and a sanitary block. The Appellant to pay to the Court Receiver as compensation a sum of Rs.300/- (Rupees three hundred) per month in respect of the said flat". 3. It appears that later on Defendants expired. One Neville D’Souza claims to be the : 4 : legal representative of the deceased Defendants and he has taken resort to Probate Petition, which is stated to be pending in this Court in Letters of Administration No.201 of 2004. In the said proceedings, Plaintiff has filed caveat. In some derivative proceedings, the issue came up for consideration before another Single Judge of this Court on 19th October 2004. The Advocate for the Plaintiff assured before this Court that he will withdraw the Caveat Application. 4. Be that as it may, the Plaintiff has filed present Chamber Summons for the following reliefs : "(a) That this Hon’ble Court be pleased to condone the delay of 31 days in taking out the Chamber Summons; (b) That the Plaintiff herein be granted leave to amend the Execution Application to bring the Respondents Nos.1 to 3 herein as the heirs and legal representatives of the deceased 1st and 2nd Defendant and to carry out the consequential amendment thereto within four weeks from the date of the Order; (c) That the said Respondents Nos.1 to 3 may be directed to execute the draft of Agreement at Exhibit ‘B’ to the Plaint and as per the Schedules 1 and 2 annexed to the Decree dated 13th April 1993 within four weeks from the date of the order; : 5 : (d) that if the Respondents Nos.1 to 3 or any of them fail to sign and execute the said draft Agreement being Exhibit ‘B’ to the Plaint and as per the Schedule 1 and 2 annexed to the Decree dated 13th April 1993, the Court Receiver, High Court, Bombay or his assistant may be directed to execute, immediately thereafter; (e) That this Hon’ble Court be pleased to expedite the hearing of the above Chamber Summons; (f) Ad-interim reliefs in terms of prayers (a) to (e) above; (g) Cost of this Application; (h) For such other and further reliefs as the nature and circumstances of the case that may be required". 5. Although, Respondents have been duly served, none appears, except for Respondent No.3 Charles D’Souza. Counsel for the Respondent No.3 submits that he also appears for Neville D’Souza, though he is not party to the present Chamber Summons. He submits that neither Mr.Neville D’Souza nor Respondent No.3 has challenged the decree passed by this Court on 13th April 1993 in Suit No.1205 of 1978. The only objection is that the probate proceedings are pending in which the Plaintiff has filed caveat and inspite of assurance : 6 : given to this Court on 19th October 2004, the Plaintiff has not withdrawn caveat. It is submitted that once the caveat is withdrawn by the Plaintiff, the probate proceedings can proceed and in which case, the letters of administration will be issued in favour of Neville D’Souza, who in turn, will step in the shoes of the deceased Defendants to execute the decree. 6. The fact remains that the decree has not been challenged by anyone and the decree has become final. Besides, Neville D’Souza has no objection to the execution of the decree. It is fairly accepted that in the probate proceedings, the property involved is the same as in the present decree. 7. Therefore, without going into the question as to whether the said Neville D’Souza is entitled to letters of administration, in my opinion, the decree can be executed through the Court Receiver to be appointed by this Court, who will represent the estate of the deceased Judgment Debtors. That course will subserve the interest of justice. : 7 : 8. Accordingly, this Chamber Summons is allowed by directing the Court Receiver to proceed with the execution of the decree representing the estate of deceased Judgment Debtors. This course is adopted in view of the provisions under Section 51 of the Code of Civil Procedure, which enables the Court to get the decree executed by appointing a Receiver. 9. As is seen from the relevant extract of the decree, the decree itself provides for such a course, which is being given effect to by this order. Ordered accordingly. 10. At this stage, Counsel for the Plaintiff once again undertakes that he will withdraw the caveat filed before the Probate Court, as was assured by him on 19th October 2004. The said assurance is accepted. That be done within one week from today. A.M.KHANWILKAR, J.