1 14 ca.2896.10 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2896 OF 2010 IN FIRST APPEAL NO. 499 OF 2010 Nikhil Mahendra Shah. ... Appellant Vs. Geeta Mahendra Shah and anr. ... Respondents ( Respondent No.1 / Applicant ) WITH CIVIL APPLICATION (STAMP) NO. 9605 OF 2010 IN FIRST APPEAL NO. 499 OF 2010 Nikhil Mahendra Shah. ... Appellant / Applicant Vs. Geeta Mahendra Shah and anr. ... Respondents ------ Smt. Sharmila Deshmukh for Applicant in CA No. 2896 of 2010 and for Respondent in CA (st) No. 9605 of 2010. Mr. Bharat Joshi for Respondent Nos. 1 and 2 in CA No. 2896 of 2010 and for Applicant in CA (st) No. 9605 of 2010. ------ CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 11 th August, 2010. 2 14 ca.2896.10 anr P.C. 1 Civil Application No.2896 of 2010 has been filed by the Respondent (mother). Whereas, Civil Application (stamp) No. 9605 of 2010 has been filed by the Appellant (son). 2 The relief claimed in the application filed by the mother is to issue directions against the son not to create third party rights in respect of flat bearing No. A/502 in building known as Garima Towers, Panchpakadi, Thane West. Insofar as this relief is concerned, the learned counsel for the son states on instructions that since the mother is already occupying the said premises, status-quo as of today with regard to the said premises would be maintained. That assurance is accepted. The mother shall continue to occupy the said premises and enjoy the same during the pendency of the proceedings or during her lifetime whichever is earlier and shall not create any third party interest therein in any manner whatsoever. 3 The further relief claimed by the mother is to direct the son to deposit the amount of Rs.21,16,800/- received by him by way of rent and compensation from Paras Building from November, 1999 till April, 2010. Insofar as this relief is concerned, the appeal takes exception to the decree passed by the lower Court with regard to the said property. Appeal has already been admitted. The son has assailed the finding of the lower Court in relation to the said property on the ground that the 3 14 ca.2896.10 anr same was acquired by his grand father and it is an ancestral property to which there are other claimants and that the mother cannot have any right in the said property. If that contention is to be accepted, the question of son requiring to deposit amount received by way of rent in relation to the said property cannot be countenanced. The grievance of the mother is that no accounts in respect of the rents received in respect of the said property are being furnished to her. Insofar as this grievance is concerned, the learned counsel for the son submits that the arrangement as obtained before the lower Court during the pendency of the trial as stated in the order dated 22 nd August, 2000 passed below Exhibit-5 shall be continued during the pendency of the appeal. Incidentally, the said order was confirmed by this Court in Appeal from Order No. 789 of 2000 decided on 18 th June, 2002. Considering the controversy involved, interest of justice would be met if the son is directed to comply with the same terms and conditions, which obtained during the pendency of the trial to be observed even during the pendency of the appeal. The learned counsel appearing for the son on instructions submits that the son is willing to abide by the said arrangement. That assurance is accepted. 4 The grievance of the mother is that the accounts furnished by the son to the trial Court was not accurate. That position is demonstrated from the receipt available on record. The correctness of such grievance can be considered at the appropriate stage. Taking any view of the 4 14 ca.2896.10 anr matter therefore, the relief in terms of prayer clause (b) of this application cannot be granted. At the same time, the arrangement agreed by the son referred to above shall be observed punctually. 5 Insofar as prayer clause (c) is concerned, the mother prays that Court Receiver be appointed. Even this relief will have to be stated to be rejected. Similar relief was prayed before the lower Court during the pendency of the trial, which has been rejected by the same order dated 22 nd August, 2000 by the trial Court below Exhibit-5. That order was confirmed by this Court in Appeal from Order No. 789 of 2000 decided on 18 th June, 2002. For the same reasons, the relief of appointment of Court Receiver cannot be allowed to be revisted nor can be granted as prayed. 6 Insofar as prayer clause (d) is concerned, it is prayed that proper person be appointed as Court Commissioner for taking all accounts, which are subject matter of the appeal and especially the income received from the Paras Building and from the business carried on by the son in the name and style of Shreeji Furnitures and Interiors. Insofar as this relief is concerned, the stand taken on behalf of the son is that except three properties, the son is not opposed to execution of rest of the decree. According to him, Paras Building was acquired by his grand father and is an ancestral property to which the mother cannot have any right whatsoever. Whereas, there are other claimants to the said 5 14 ca.2896.10 anr properties. The other property is business conducted in the tenanted premises in the name and style of Shreeji Furnitures and Interiors. The learned counsel appearing for the son submits that insofar as rendering accounts of the business is concerned, he has no objection for doing so. However, the premises in which the said business is conducted, is a tenanted premises. The third property is a flat in Garima Towers, which is acquired by the real mother of the son, who expired earlier and his father had relinquished his right in the said property in favour of the son. In other words, the Respondent-mother can have no right to the said property. Be that as it may, the relief under consideration is for appointment of Court Commissioner. As the Appellant-son has no objection for execution of the remaining decree, it will be open to the Respondent-mother to invoke execution action and seek appropriate direction therein. It is not necessary to consider the prayer for appointment of Court Commissioner for taking of accounts in the present application. All questions in that behalf are left open. 7 Insofar as prayer clause (e) is concerned, that does not survive in view of the opinion recorded while dealing with prayer clause (d) of the application. 8 The application filed by the Respondent-mother is disposed of on the above terms. 6 14 ca.2896.10 anr 9 Insofar as the application filed by the son is concerned, it is fairly submitted that prayer clauses (A) and (B) thereof will not survive for consideration. The Applicant however, prays grant of prayer clause (C). Besides, it is fairly stated that the decree may be stayed only with regard to three properties referred to earlier. It will be open to the parties to proceed with the execution of decree for the remaining decree. Accordingly, interim relief of stay of execution of impugned decree is granted only in respect of three properties referred to earlier. Application filed by the son is disposed of on the above terms. 10 The learned counsel for the Respondent-mother submits that besides filing the accounts in Court, the son should furnish inspection of the relevant documents if called upon and also furnish copy of the accounts submitted in Court from time to time. The counsel appearing for the son on instructions states that this obligation would be complied with. In the circumstances, no direction is required. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]