IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 2424 OF 2008 OF MOTION NO. 2424 OF 2008 OF MOTION NO. 2424 OF 2008 IN IN IN APPEAL APPEAL APPEAL NO. 1065 OF 2000 NO. 1065 OF 2000 NO. 1065 OF 2000 IN IN IN SUIT SUIT SUIT NO. 1294 OF 1986 NO. 1294 OF 1986 NO. 1294 OF 1986 1. Prakash Narsingh Shah & ors. ] .. Applicants/ Appellants (Org.Defendants) Versus 1.Kishore Narsingh @ Hiralal Shah & ors] .. Respondents (Org.Plaintiffs) Mr. V.A. Thorat, senior counsel i/b M/s. Bharat Vaishnawa & Co. for the applicants/appellants. Mr. Naushad Engineer with Mr. N.C. Parikh and Ms. Manisha Poladia i/b M/s. Mansukhlal Hiralal & Co. for the respondents. CORAM: S.B. MHASE & PRASANNA B. VARALE, JJ. DATED: 01ST AUGUST, 2008 P.C. : 1. Heard Mr. V.A. Thorat, learned senior counsel for the applicants/appellants and Mr. Naushad Engineer learned counsel for the respondents. The order passed on 4th June, 2008 viz. the chamber order for amendment in the execution petition is under challenge. : 2 : 2. This matter arises from Suit No.1294 of 1986. It was a suit for partition amongst the children of the deceased - one Shri Narsingh. It appears that the deceased Narsingh had two wives and the children of the two wives are fighting amongst themselves for partition of the properties. The plaintiffs in the suit i.e. respondents in this Appeal are the children of the wife by name Sushilaben while the appellants-original defendants are the children of the wife by name Bunibai. The suit has been decreed by a learned single Judge of this court and the present Appeal No.1065 of 2000 is pending against the said partition decree. The applicants in the present Notice of Motion are the appellants in the Appeal. 3. At this stage, we are concerned with the property listed at Sr.No.(ii) in Exhibit-A. The description of the said property is as follows - "Business run in the name and style of Stylish & Co. near Railway Station, Khar, Bombay". On a bare reading of this description it is evident that the premises in which the said business is being carried on is not a subject matter of the suit. However, at the end of Exhibit-A, the respondents-plaintiffs have stated that : 3 : in addition to the properties stated earlier, there are also other movable and immovable properties, not personally known to the plaintiffs and prayer (c) of the Plaint was to the effect that the defendants-appellants be directed to disclose the other movable and immovable properties and the said prayer has been granted by the single Judge when the suit was decreed. 4. It appears that in consonance with the said relief which was granted to the plaintiffs, in an execution petition, the plaintiffs moved an application/Chamber Summons directing the defendants to disclose the properties which are not known to the plaintiffs-respondents in the present Appeal and, accordingly, disclosure was made. We are not concerned with the total disclosure in this Motion because while arguing the matter, the learned senior counsel has restricted his claim to item No.(ii) of Exhibit-A to the Plaint. The learned senior counsel stated that in consonance with the directions, the appellants- defendants have disclosed the tenanted premises in which the business of Stylish & Co. was carried on and it was a property taken by Stylish & Co. on tenancy basis. Since it was disclosed that it was a tenanted property, according to the plaintiffs-respondents, it is liable for partition. Our attention was invited to an order : 4 : passed by the Division Bench of Justice Patankar and Justice Kakade which was passed in Notice of Motion No.3530 of 2000. This order has been passed by the said Division Bench taking into consideration six properties which are mentioned in Exhibit-A to the Plaint. Since the tenanted property was not a subject matter of the said Notice of Motion at that time, the said order is not applicable in respect of the tenanted property with which we are concerned. But, it appears that the said order permitted the plaintiffs-respondents to proceed with the execution of certain properties which are mentioned in Exhibit-A and which may be disclosed in view of the decreed clause (c) which was granted by the learned single Judge. Therefore, the respondents- plaintiffs now claim that they are entitled to proceed as against the tenanted premises since there is no stay in the Appeal. 5. The learned senior counsel submitted that this property was a subject matter of the suit and it was subsequently disclosed as per the directions of the court in view of the decree. However, he submitted that this property cannot be said to be available for the partition because admittedly this property is not in possession of the respondents-plaintiffs and the inheritance to this property is governed by the Bombay : 5 : Rent Act and/or the Maharashtra Rent Act and the usual, traditional testamentary succession is not applicable and, therefore, he tried to make out a case that the petitioners/respondents are not entitled to any share in the property. He submitted that such an issue, when Appeal against the preliminary decree is pending before this court, has to be decided by the Appellate Court and not by the executing Court. Therefore, he submitted that the execution in respect of the tenanted premises wherein the business is run in the name and style of Stylish & Co. near Railway Station, Khar, Bombay may be stayed. The learned counsel for the respondents submitted that this is submission is not good in law because, according to him, all questions in respect of the discharge satisfaction are required to be considered by the executing court under Section 47 of the Code of Civil Procedure. 6. We only observe at this stage that presently the preliminary decree which has been passed is in respect of the properties which are not agricultural properties and, therefore, after passing of preliminary decree before the decree can be passed for execution viz. for delivery of possession it is necessary to pass a final decree. However, since the Appeal as against the preliminary decree is pending, the final decree has : 6 : to be passed by the single Judge. Even the former application which is required to be made by the respondents-plaintiffs has not been made as yet. 7. Taking into consideration all these aspects, whether the tenanted property to which the present Motion is restricted by the learned senior counsel is available to the partnership or not is a question to be dealt with in the main Appeal and, therefore, it would be appropriate to stay the execution proceedings which are pending before the Prothonotary & Senior Master to the extent of the tenanted property at serial number (ii). We, therefore, allow the Notice of Motion, not in terms of the prayer clauses as prayed for in the Notice of Motion, but we only stay execution to the extent of the premises which are tenanted and wherein the business is run in the name and style of Stylish & Co. as described in Exhibit-A of the Plaint. Learned senior counsel also makes a statement before this court that pending the Appeal, the appellants will not transfer and/or create any third party interest in respect of the tenanted premises wherein the business is run in the name and style of Stylish & Co. as described in Exhibit-A of the Plaint. : 7 : 8. Notice of Motion, accordingly, stands disposed of. Sd/- Sd/- [PRASANNA [PRASANNA [PRASANNA B. VARALE, J.] B. VARALE, J.] B. VARALE, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]