mgn 1 app-lodg.365-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.365 OF 2011 IN NOTICE OF MOTION NO.1635 OF 2011 IN SUIT NO.3563 OF 2000 Jagjit Kaur Hardev Singh Kochhar & Ors. ..Appellants. Versus Tarvinder Kaur Sachdev & Ors. ..Respondents Mr. J.P. Sen with Mr. Gaurang Joshi, Cyrus Ardeshir, Rajeev Bhatia, Abhishek Sawant i/b. M/s.Apex Consillis for the Appellants. Mr. V.Y. Sanglikar, for the respondent Nos.2 and 3. CORAM : MOHIT S. SHAH, C. J. AND GIRISH S. GODBOLE, J. DATE : 14th June, 2011 PC: This appeal arises from the order dated 6th June, 2011 of the learned trial Judge of this Court refusing to grant ad-interim relief in the appellants’ Notice of Motion No.1635 of 2001 in Suit No.3563 of 2000 for partition filed by the appellants-plaintiffs. 2. Having heard the learned Counsel for the parties for some time and having regard to the statement being made on behalf of the respondent Nos.2 and 3 (defendant Nos. 1 and 2) and the order that we propose to pass, it is not necessary to mention the facts in detail. 3. The appellants seek appointment of Court Receiver in respect of the premises being Flat No.4, 1st Floor, 63-C, West Avenue, Emblem, Santacruz West, Mumbai-400 054. The flat was let out to a tenant and a decree of eviction came to be passed by the Court of Small mgn 2 app-lodg.365-11.sxw causes at Bombay in R.A.E. and R Suit No.148/426 of 1985. The said eviction decree came to be confirmed in Appeal and also by this Court in in Revision and thereafter by the Supreme Court. The Execution Application No.23 of 2011 has been filed. 4. The appellants-plaintiffs contend that in execution of the decree, the possession of the above property should be handed over to the Court Receiver to be appointed as prayed for by the plaintiffs. In support of this claim the learned Counsel for the plaintiffs relied on the order dated 31st July, 2002 passed by a learned Judge of this Court in Notice of Motion No.2543 of 2000 in Suit No.3563 of 2000. 5. On the other hand the learned Counsel for the respondent Nos. 2 and 3 has submitted that the flat in question was, under the family arrangement, given to Lal Singh Kochar, the father of respondent Nos. 2, 3 and 4 when the eviction suit was filed, the appellants had in fact supported the tenant. It is submitted that in view of the above facts the heirs of Lal Singh Kochhar alone are entitled to vacant possession of the flat in the execution proceedings. It is submitted that the rent of the other two flats is being collected by the appellants-plaintiffs. It is also submitted that the appellants-plaintiffs are obstructing the possession of the flat being handed over to respondent Nos. 2 and 3, the appellants- plaintiffs, therefore, are not entitled in equity to get any injunction. It is further stated by the learned Counsel for respondent Nos. 2 and 3 that respondent Nos.2 and 3 are not going to alienate, transfer or create any third party rights in the above property till 30th September, 2011. 6 Having heard the learned counsel for the parties and particularly having regards to the fact that the suit for partition is mgn 3 app-lodg.365-11.sxw pending since the year 2000, we are of the view that instead of parties fighting out their case at the motion stage, the suit itself requires to be heard and decided at the earliest. The learned counsel for the parties state that their respective clients will cooperate for expeditious hearing of the suit No.3563 of 2000 along with the counter claim. 7 In view of the above, we dispose of this appeal after recording the statement made by the learned counsel for the respondent Nos. 2 and 3 (Defendant Nos. 1 and 2 in the suit) that respondent Nos. 2 and 3 are not going to alienate, transfer or create any third party right in the above property till 30th September, 2011. In the mean time, the learned Trial Judge is requested to take up the suit and the counter claim for early trial and dispose of the same preferably on or before 30th September, 2011. 8 In case the suit and the counter claim cannot be decided within the above time limit inspite of the cooperation of the parties, the appellants-plaintiffs will be at liberty to file fresh notice of motion or move for extension of the statement made on behalf of respondent Nos. 2 and 3 (defendant Nos. 1 and 2 in the suit) so also the respondent Nos. 2 and 3 will be at liberty to move the learned Trial Judge for permission to give the premises in question on leave and licence basis subject to such terms and conditions as may be imposed by the learned Trial Judge. The Notice of Motion No.1635 of 2011 is accordingly disposed of in the aforesaid terms. CHIEF JUSTICE GIRISH S. GODBOLE, J.