Case Note & Summary
This appeal under Clause 15 of the Letters Patent read with Order XXI Rule 103 of the Code of Civil Procedure, 1908, challenged the order of a learned Single Judge dated 18th January 1996, by which Chamber Summons No.1060 of 1994 was made absolute. The chamber summons sought execution of a decree for possession of Flat No.5, situate on the first floor of a building at Plot No.191, Road No.13, Jawahar Nagar Cooperative Society Limited, Goregaon (West), Bombay. The respondent, P.T.Mehta, was the original plaintiff and decree holder in Suit No.2434 of 1994, which was a suit for specific performance of an agreement for sale dated 15th April 1985, confirmed on 15th November 1985. The suit property comprised land and building, including Flat Nos. 1 and 3 on the ground floor. A decree on admission was passed on 21st September 1987, wherein the original defendants (husband and wife) undertook to hand over vacant possession of Flat Nos. 1 and 3 by 31st December 1988. Despite the decree, the defendants violated the undertaking by creating fresh tenancies and failed to hand over possession. The decree holder obtained possession of Flat No.1 on 15th December 1989 and Flat No.3 on 24th February 1992. Meanwhile, the appellant, Harish Kawa, was inducted into Flat No.5 by the original defendants. The warrant of possession was amended to include Flat No.5, but when execution was attempted on 15th September 1992, the appellant obstructed, claiming an independent right. A contempt motion was taken out against the original defendants and the appellant, resulting in conviction of the original defendant but leaving the appellant's rights to be decided in separate proceedings. Chamber Summons No.839 of 1992 was filed but withdrawn on 20th November 1992 with liberty to file a fresh chamber summons. Subsequently, Chamber Summons No.1060 of 1994 was filed, and the learned Single Judge made it absolute on 18th January 1996, directing removal of the appellant from Flat No.5. The appellant then preferred the present appeal. When the appeal came up for hearing on 13th September 2005, the respondent, an aged lawyer with hearing difficulty, expressed a desire to have his son, Mr.Vijay Mehta, a power of attorney holder, argue the matter. With the consent of the appellant's senior counsel and upon filing of an affidavit, the Court permitted the son to make oral submissions, clarifying that this would not be a precedent. The judgment then proceeded to narrate factual and procedural history but was truncated before the court could record arguments on merits, analyse the legal issues, or render a final decision. Therefore, the outcome of the appeal is not available from the provided text.
Issue of Consideration
Whether the chamber summons for execution against an obstructor claiming independent rights was correctly maintained and made absolute by the Single Judge
Case Details
2005 LawText (BOM) (10) 22
APPEAL NO.247 OF 1996 IN CHAMBER SUMMONS NO.1060 OF 1994 IN SUIT NO.2434 OF 1994
Dr. S. RADHAKRISHNAN, S.C. DHARMADHIKARI
Mr.S.H.Doctor, Senior Counsel with Mr.D.R.Mehta for appellant; Mr.Vijay Mehta, Constituted Attorney of respondent No.1, party in person
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Nature of Litigation
Execution of decree for possession obtained in a suit for specific performance of agreement for sale
Remedy Sought
Appellant sought to set aside the order of learned Single Judge dated 18 January 1996 making absolute Chamber Summons No.1060 of 1994, thereby directing removal of appellant from Flat No.5 and delivery of possession to decree-holder
Filing Reason
Appellant obstructed the execution of decree when decree-holder attempted to take possession of Flat No.5; he claimed independent right, title and interest as a third party occupant
Previous Decisions
Decree on admission dated 21 September 1987 in Suit No.2434 of 1994; Order of S.N. Variava, J. dated 7 August 1992 in contempt motion convicting original defendant but leaving appellant's rights to be decided in appropriate proceedings; Order dated 20 November 1992 in Chamber Summons No.839 of 1992 permitting withdrawal with liberty; Order on review petition clarifying that Prothonotary may also be approached; Order of learned Single Judge dated 18 January 1996 making Chamber Summons No.1060 of 1994 absolute
Issues
Whether the learned Single Judge erred in making the chamber summons absolute without properly adjudicating the rights of the appellant as a third party in possession under Order XXI Rules 97 to 103 of CPC
Whether the execution proceedings could be maintained against the appellant who claimed independent right, title and interest
Judgment Excerpts
This is one more instance proving that execution of a decree for possession is an uphill task. Even after Seventeen (17) years, the decree holder is unsuccessful in getting the fruits of the same.
In all fairness, Mr.Doctor invited our attention to the relevant provisions in the Code of Civil Procedure, (C.P.C), Advocates’ Act, 1961 and Bombay High Court (O.S) Rules and contended that in the absence of any prohibition therein and in the peculiar facts of this case, the Court should pass appropriate orders.
We clarify that this course of action shall not be construed as a precedent for future cases.
It is in these circumstances that the first respondent applied for further amendment to the warrant of possession by obtaining a chamber order from Prothonotary and Senior Master of this Court.
In the light of this obstruction, plaintiff - decree holder took out chamber summons No.839 of 1992.
The plaintiff must give previous notice of such application to any third party who is concerned or affected i.e. the respondent and/or the other tenants.
Procedural History
Suit No.2434 of 1994 filed on 14 August 1987 by respondent (original plaintiff) for specific performance. Decree on admission passed on 21 September 1987. Defendants undertook to hand over vacant possession of Flat Nos.1 and 3 by 31 December 1988. Plaintiff/decree holder obtained possession of Flat No.1 on 15 December 1989 and Flat No.3 on 24 February 1992. Appellant Harish Kawa was inducted in Flat No.5 by original defendants. Warrant of possession amended to include Flat No.5. Obstruction by appellant on 15 September 1992. Chamber Summons No.839 of 1992 taken out, withdrawn on 20 November 1992 with liberty to file fresh chamber summons. Chamber Summons No.1060 of 1994 filed. Learned Single Judge made it absolute on 18 January 1996. Present appeal filed under Clause 15 of Letters Patent read with Order XXI Rule 103 CPC against that order.
Acts & Sections
- Letters Patent (Bombay High Court): Clause 15
- Code of Civil Procedure, 1908: Order XXI Rule 103, Order XXI
- Advocates Act, 1961:
- Bombay High Court (Original Side) Rules:
