IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COURT RECEIVER'S REPORT NO.48 OF 2009 IN SUIT NO.517 OF 1966 The Trustees of the Port of Bombay ..Plaintiff Vs. Sayed Abdul Hamid Mohamed Shah Kadri (since deceased & ors.) ..Defendants Mr.U.J.Makhija i/b. M/s.Mulla & Mulla, for plaintiff P.V.Bhagat i/b. Vasant & Co., for Defendant No.1(B). Mr.Denzil D'Mello, Advocate. Mr.K.L.Vyas, Court Receiver. .. CORAM : DR.D.Y.CHANDRACHUD , J. DATE : 16 th April, 2009 P.C. 1 A decree for possession and for money was passed by this Court on 15th November, 1967 in Suit 517/1966. On 6-9-1976 a Chamber Summons taken out by the Board of Trustees of the Port Trust was made absolute in terms of prayer clause “a”. The Court Receiver came to be appointed as receiver in execution. On 21th June, 1984 a learned Single of this Court directed the Court Receiver to hand over possession of the property to the decree holder after a period of one month. In the meantime, the legal representatives of the Judgment Debtor were granted liberty to remove the structure which was built thereupon. The Receiver was directed to hand over the property to decree holder with the structure if that was not removed. The order of the learned Single Judge was set aside in Appeal on 24th November, 1987. The Division Bench observed that if the port trust wanted possession, it could do so by taking recourse to execution proceedings under Order 21 of the Code of Civil Procedure. Since admittedly no warrants had been issued or executed in the absence thereof the Court held that possession could not be handed over to the Port Trust. The report of the Receiver and the Chamber Summons of the Port Trust were restored to the file of the learned learned Single Judge and the order dated 21st June 1984 was set aside. The decree holder had already adopted execution proceedings on 11th September 1992. The Chamber Summons was disposed of in April, 1994 since the rival submissions would fall for determination in the execution proceedings. 2 From the record before the Court it appears that on 4th December 2002 when the report of the Court Receiver came up for hearing the learned Single Judge observed that so far, the Court Receiver had not taken any steps to execute the decree. The Court Receiver was directed to take steps in accordance with law to execute the decree and in the event that execution was resisted the Court Receiver was directed to put up a report before the Court. In a further order dated 29th January 2003 a learned Single Judge recorded the statement of Counsel for the decree holder that “there is no order passed in execution of the decree according to which, the Receiver can take possession of the property to which the decree relates”. The statement was accepted and the report of the Receiver was disposed of. Thereafter, on a further report of the Court Receiver an order was passed by the learned Single Judge on 26th September 2006. The learned Single Judge observed that when the Court Receiver takes possession and executes the decree, obviously it was for the benefit of the decree holder. However, when the decree holder himself states the Court Receiver is not entitled to take possession then the enquiry must end. The learned Single Judge recorded the statement of the decree holder that “even today thee is no order authorising the Receiver to take possession of the property in relation to which the decree is passed”. The Receiver was accordingly directed to hand over possession of the property back to the party from whom possession was taken. 3 A Chamber Summons (Chamber Summons No.1465 of 2006) was taken out by the decree holder seeking two reliefs: (1) A Direction to the Court Receiver to hand over symbolic possession of the land and building which is the subject matter of the decree dated 15th November, 1967; and (2) A further direction to the Sheriff to execute the warrant of possession after symbolic possession of the land and building was handed over to the plaintiffs. That Chamber Summons was dismissed by a learned Single Judge on 12th December 2006. Before the learned Single Judge an attempt was made to urge that the submission made by the learned Counsel appearing on behalf of the Port Trust and recorded in the previous order dated 2th September, 2006 was erroneous. This contention was rejected by the learned Single Judge. The learned Single Judge observed that even if possession is handed over by the Receiver to the person from whom possession was taken, yet in execution, the plaintiff will be entitled to obtain possession in accordance with order 21 rule 36; the plaintiff can only take symbolic possession of the plot since admittedly the lessee has constructed a structure there on and that structure has been occupied by several occupants who claim independent rights. While disposing of the Chamber Summons the learned Single Judge observed that the prayer made in the Chamber Summons could not be granted and the Chamber Summons came to be dismissed. However, the learned Single Judge directed that the application for issuing a warrant of possession under Order 21 Rules 35 and 36 of the Code of Civil Procedure was allowed in part, and the Prothonotary and Senior Master was directed to issue a warrant of possession in respect of the suit plot (excluding the built up structure thereon). This order of the learned Single Judge has not been challenged. 4 The attention of the Court also has been drawn to the fact that in the warrant of possession dated 30th May, 2007 the direction that has been sought is to deliver possession to the decree holder of the suit plot (excluding the built up structure thereon). Since the order of learned the learned Single Judge dated 12th December 2006 continues to hold the field, the Receiver is bound to comply with the directions by handing over possession of the suit plot (excluding the built up structure thereon) and to execute the decree accordingly in accordance with law. In my view the possession of the Legal Representatives cannot rank higher than that of the judgment debtor. 5 Learned Counsel appearing on behalf of the decree holder has fairly stated that in so far as the structure is concerned, the appropriate remedy for the decree holder would be to seek recourse against the order dated 12th December 2006. The report of the Receiver is disposed of by directing the Receiver to act in strict compliance with the order dated 12th December 2006 by handing over symbolic possession of the land to the decree holder. This shall however not preclude the decree holder from seeking the necessary relief in execution proceedings in respect of the structure standing thereon, in terms of the statement recorded hereinabove.. 6 Learned Counsel appearing on behalf of the heirs of the original defendant submits that the order passed by this Court on 12th December 2006 requires that possession of the structure should be handed over to his client. This submission cannot be accepted, as clause “C” of the directions issued by this Court on 12th December 2006 stipulates that the handing over of the possession of the land by the Receiver to the person from whom he has taken possession should be simultaneous with the handing over of possession under Order 21 Rule 36. In so far as prayer clause “A” is concerned, the learned Counsel appearing on behalf of decree holder states that he has no objection. The amount lying with the Receiver will have to be paid over to the Municipal Corporation after deducting the costs, charges and expenses of the Receiver since it has been stated in the report that an amount of Rs.83,56,267.20 is due and payable to the Municipal Corporation. 7 The Report of the Court Receiver is accordingly disposed of. Dr.D.Y.CHANDRACHUD , J. Crr48-09