spb/- 1 wp4749-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 4749 OF 2011 Shreedhar Govind Kamerkar ... Petitioner. V/s. Yeshwant Goving Kamerkar & Ors. ... Respondents. ----- Mr. Kantilal Kanojia i/by P.N. Patwardhan for the Petitioner. Mr. P.G. Karande for the Respondents. ----- CORAM : D. G. KARNIK, J. DATE : 27th JULY, 2011. P.C. : 1 Heard learned counsel for the petitioner and the respondents. 2 Respondent no.1 is the original plaintiff. He filed a suit against the petitioner and respondent no. 2 for dissolution of partnership and accounts. In first appeal, this court passed a decree for dissolution of partnership and accounts. It also directed that the property in which partnership business was carried be divided in three parts. Special Leave Petition against the decision of this court was dismissed by the Supreme Court. Thereafter,in execution, the executing court passed an order appointing B.B.Desai and Associates as a Court Commissioner for the purpose of suggesting partition of the property. The challenge to the order of Court Commissioner was rejected by this court and I am spb/- 2 wp4749-11.sxw informed at the Bar that the order of this court is challenged before the Supreme Court and the SLP is pending but no stay has been granted. It appears that thereafter, M/s. B.B. Desai and Associates informed the court their inability to act as Court Commissioner. Therefore, by an order dated 30th September, 2008 the executing court substituted M/s. Sankalp Associates as Court Commissioner in place of M/s. B.B,Desai and Associates. On the receipt of intimation of their appointment, M/s. Sankalp Associates informed to the court their acceptance and willingness to act as Court Commissioner. By an order dated 30th October, 2008 the Court noted the receipt of the letter of acceptance of M/s. Sankalp Associates. The order dated 30th September, 2008 appointing M/s. Sankalp Associates as Court Commissioner and the order dated 30th October, 2008, noting the acceptance by M/s. Sankalp Associates to act as the Court Commissioner are subject matter of the challenge of this petition. 3 In my view, the challenge is without substance. It appears to have raised only for the purpose of delaying and/or protracting the proceedings of execution of the decree that has been passed by this court in the year 2005. The petitioner has been able to avoid execution of the decree successfully for six long years and this is one more attempt to protract the execution. spb/- 3 wp4749-11.sxw 4 Learned counsel for the petitioner submitted that since order of original appointment of the Court Commissioner itself is the subject matter of challenge before the Supreme Court, the Court should not have passed an order, substituting the Court Commissioner. It may be noted that the Honourable Supreme Court has not so far admitted the Special Leave Petition nor has it granted stay to the appointment of the Court Commissioner. If the Court Commissioner informs the court his inability to act as a Court Commissioner, the Court is not powerless to substitute the Court Commissioner by a new name. 5 Learned counsel for the petitioner submits that the order of substitution would affect his rights as the original appointment itself is under challenge before the Apex Court. Needless to say that if original appointment is struck down, the order of substitution would also fall and the impugned order would not cause any prejudice to the petitioner. 6 For the reasons mentioned above, I am satisfied that the Executing Court committed no error in passing the impugned orders. There is no merit in the writ petition which is hereby rejected summarily. [D.G. KARNIK, J.]