Civil Procedure Code, 1908 – Where a decree passed by the trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The order dated 01.03.2012 passed by the High Court of Bombay under appeal cannot be sustained and is hereby set aside. The High Court is directed to decide the appeal afresh on merits in accordance with law. The appeal is hereby allowed.
2015 (10) Scale 369 : 2015 (4) RCR (Civil) 782 : 2015 (5) RAJ 245 : 2015 (3) PLJ 458 : 2016 (114) ALR 202 : 2016 (157) AIC 86 : 2016 (1) BCR 38 : 2016 (1) JCR 139 : 2016 (1) CalLJ 148 : 2016 (2) ALT 52 : 2016 (1) RJ 607 : 2016 (1) Cal. H.C.N. 19 : 2016 (3) WLN 54
CIVIL APPELLATE JURISDICTION
(RANJAN GOGOI) AND (R.K. AGRAWAL) JJ.
OCTOBER 8, 2015
CIVIL APPEAL NO. 8397 OF 2015
(Arising out of Special Leave Petition (C) NO. 10721 OF 2012)
Avenue Supermarts Pvt. Ltd. …. Appellant(s)
Mrs. Nischint Bhalla & Ors. …. Respondent(s)
For Petitioner(s) Mr. E. C. Agrawala, AOR For Respondent(s) Ms. Anushree Menon, Adv. Mr. Vikas Mehta, AOR Mr. Puneet Singh Bindra, Adv. Mr. Aslam Ahmed, Adv. Mr. Gagan Gupta, AOR
J U D G M E N T
R.K. Agrawal, J.
1) Leave granted.
2) The present appeal has been filed against the judgment and order dated 01.03.2012 passed by the Division Bench of the High Court of Bombay in Appeal No. 271 of 2009 in Notice of Motion No. 21 of 2006 in Suit No. 3706 of 1995. Before the High Court, an appeal was filed against the order dated 10.02.2009 passed by the learned single Judge of the High Court on a Notice of Motion taken by Defendant Nos. 4A, 4B and 5 respectively in the aforementioned suit for enforcement and implementation of certain orders passed by the Court on consent of the parties to the suit.
3) However, before the Division Bench, the original Defendant Nos. 4A, 4B and 5 sought withdrawal of the Notice of Motion No. 21 of 2006 filed by them in the Suit No. 3706 of 1995. The Division Bench of the High Court opined that as the Notice of Motion taken out by Defendant Nos. 4A, 4B and 5 seeking interim reliefs and now they seek withdrawal of that motion, they cannot be prevented from withdrawing the same with the liberty to seek appropriate relief to which they may be entitled in the changed circumstances. It had further held that as a result of the withdrawal of the motion, the order of the learned single Judge passed on the motion dated 10.02.2009 does not survive for consideration rendering this appeal infructuous.
4) Brief facts:
(a) One Smt Durga Devi Hitkari was owner of various properties at Mumbai. She died in the year 1991. It appears that there was some dispute between her heirs regarding the estate left by her. The plaintiffs therein filed the present suit for administration of estate of the deceased. The Notice of Motion being No. 3441 of 1995 in the suit was taken by the plaintiffs therein praying for appointment of a receiver on the properties left by Late Smt Durga Devi and for temporary injunction restraining the defendants therein from disposing or selling or creating any third party rights or interest in the property.
(b) A learned single Judge of the High Court, vide order dated 04.08.1998 disposed of the Notice of Motion by restraining the defendants, their agents and servants from creating any third party interest in or encumbering or selling or transferring or alienating in any manner whatsoever the immovable properties bearing Survey No. 97 of Mandavi Division, admeasuring 202 sq. yards, Plot No. 66 at Chembur, Ghatkopar, Mahul Road, admeasuring 502 sq. yards and ground Ist, 6th and 7th floor of Sky Lark Building known as Hitkari House along with certain other directions.
(c) On 01.12.1999, the said Award was made rule of the court by the High Court and a decree in terms of the said Award was passed in Arbitration Petition No. 148 of 1997.
(d) Being aggrieved, defendants therein moved this Court by filing special leave petition being No. 9168 of 2000. Before this Court, learned counsel for the parties filed consent terms of compromise duly signed by the parties. Vide order dated 11.12.2000, the special leave petition got disposed of in terms of the consent terms dated 11.12.2000. However, the said order was passed without prejudice to the parties to move the High Court of Bombay for probate proceedings. The High Court, vide order dated 15.04.2004, disposed of the Notice of Motion No. 2998 of 2001 filed in Suit No. 3706 of 1995 in terms of the minutes of the order.
(e) In the minutes, the earlier order of the learned single Judge dated 04.08.1998 restraining the defendants from transferring immovable property situated at Chembur was modified and Defendant Nos. 1, 4 and 6 were permitted to take all necessary steps to sell the said property on the terms and conditions mentioned in the minutes.
(f) Bids were invited for the sale of the property at Chembur and the appellant herein gave bid of Rs. 20,15,00,000/- which was found to be highest and accepted by the parties also. No challenge was made to the sale contemplated under the provisions of the
Code of Civil Procedure, 1908
(in short ‘the Code’). As there was delay in execution of the agreement, Defendant Nos. 4A, 4B and 5 made an application by way of Notice of Motion being No. 21 of 2006 to the court for completion and confirmation of the sale process. The learned single Judge of the High Court, vide order dated 10.02.2009 confirmed the sale process and directed execution of the documents in favour of the appellant.
(g) The original Defendant Nos. 2, 6 and 7 challenged the order dated 10.02.2009 by way of Letters Patent Appeal being No. 271 of 2009 before the Division Bench of the High Court. The original Defendant Nos. 4A, 4B and 5 did not challenge the order dated 10.02.2009.
(h) At the appellate stage, original Defendant Nos. 4A, 4B and 5 made an oral application for withdrawal of the notice of motion filed by them. The Division Bench of the High Court, vide order dated 01.03.2012, allowed the withdrawal of the Motion while holding that the order of the learned single Judge dated 10.02.2009 does not survive for consideration rendering the appeal infructuous. Against the said order, the appellant has preferred this appeal by way of special leave.
5) Heard learned senior counsel for the parties.