1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.443 OF 2009 IN SUIT NO.1481 OF 1994 Vijay alias Victor Ram Mahadik .... Appellant (Ori.plaintiff no.2) Vs. Smt. Laxmi alias Saroj .... Respondents w/o Subhash Dalvi & Ors. (Ori.plaintiffs 3 to 5) Mr.Snehal Shah with F. Dubhash i/by M/s Narayanan & Narayanan for appellant. Ms.Preeti Menon i/by M/s Shreji & Lal for respondents. Coram : J.N. PATEL & SMT.R.P.SONDURBALDOTA, JJ. Date : 6th October, 2009 ORAL ORDER (Per Smt.Justice R.P. SondurBaldota) : 1. Rule. Rule returnable forthwith. Heard learned counsel for the parties. 2. This appeal challenges the order dated 17th July 2008 passed by the learned Single Judge disposing of the suit and the order dated 20th August 2008 on the application for speaking to the minutes of the order dated 17th July 2008. 3. The parties to this appeal and their mother filed suit No. 1481 of 1994 against one Ratna for declarations that they alone are the heirs of one Ram Mahadik and that Ratna was not entitled to any share in the estate of Ram. The other reliefs sought by 2 them in the plaint related to the properties of the deceased in the hands of Ratna including the suit flat i.e. Flat No.101 in Shanti Kunj Estates Co-op. Housing Society Limited. Considering the nature of the dispute, by the ad-interim order dated 21st April 1994, Court Receiver, High Court, Bombay was appointed only for the purpose of making the inventory of the articles lying in the suit flat. The Court Receiver took the inventory on 27th May 1994 and made his report dated 28th May 1994. 4. After Ratna filed her written statement, issues were framed on 5th March 2002. The plaintiffs filed affidavit of examination- in-chief dated 4th August 2003 of original plaintiff no.2. Thereafter the suit remained pending for the cross-examination by Ratna and further evidence. 5. It appears that Ratna, the sole defendant died on 15th October 2006. Later original plaintiff No.1 Janet also expired on 24th February 2007. When these facts were brought to the notice of the Court, the suit came to be disposed of by the impugned order dated 17th July 2008. By the impugned order, the learned Single Judge after taking note of the fact of death of Ratna and the statement of original plaintiffs that Ratna has left no heirs, deleted her name from the proceedings. Thereafter, instead of disposing of the suit, as having been abated on the death of Ratna, gave directions as regards distribution of the suit flat 3 and the movables therein by declaring that all the plaintiffs to the suit are equally entitled to the properties. It appears that thereafter plaintiff No.2, the present appellant moved an application for speaking to the minutes of the order dated 17th July 2008, in order to point out that since there was no prayer for distribution of the properties, direction in terms of the same could not have been given by the Court while disposing of the suit. However, the application was rejected by the learned Single Judge by the second impugned order dated 20th August 2008 stating that the order needed no correction. 6. Original plaintiff no.2 challenges the two orders by filing the instant appeal. Respondents to the appeal are the original plaintiffs no. 3 to 5. Learned counsel for the appellant submits that the directions given by the learned Single Judge while disposing of the suit by the two impugned orders go way beyond the ambit of the suit. He submits that there is no prayer sought in the plaint that the suit flat and the movables found therein be distributed amongst the plaintiffs. He points out that there is a dispute interse the plaintiffs as regards the succession to the property of Ram. It is the claim of the appellant that the respondents i.e. original plaintiff nos. 3 to 5 have given up their share in the properties in favour of the appellant. These respondents on the other hand have filed a suit for partition, which is pending in this Court. In these circumstances, there 4 could be no distribution of the properties. Learned counsel appearing for the respondents admits that these respondents have filed suit for partition against the appellant. The suit flat and the movable properties therein are included in the schedule of the properties to the suit for partition. In these circumstances, the impugned order is clearly erroneous, as travelling beyond the scope of the suit. On getting intimation of death of the sole defendant, the only order that could have been passed in the suit is of recording the abatement of the suit and disposing the same of as such. Therefore, the appeal is allowed. The impugned orders are set aside. Suit No.1481 of 1994 is disposed of as having been abated. The appellants are directed to pay costs of the Court Receiver quantified at Rs.19,890/- within a period of four weeks from today. (Smt.R.P.SondurBaldota,J) (J.N. Patel, J.)