Quashed

Byramjee Jeejeebhoy Private Limited v. Maharashtra State Textile Corporation Limited

Bombay HC11 Jul 2007WP/2439/2007

Case brief

AI extract

What is this about?

The High Court quashed an order appointing a Court Commissioner in execution proceedings initiated by a consent decree holder, holding the appointment was unsustainable without a party application. The petitioner was directed to get a warrant of possession.

What did the court decide?

Order dated 29.3.2007 quashed. Learned Judge directed to grant warrant of possession in favour of petitioner subject to requisite conditions.

Byramjee Jeejeebhoy Private Limited Vs Maharashtra… — Execution and Attachment | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.2439 OF 2007

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 Byramjee Jeejebhoy Pvt.Ltd. .. Petitioner.

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 V/s.

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 Maharashtra State Textile
 Corporation Limited .. Respondent.

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 Mr.H.J. Thakkar, Sr. Counsel with Anirudha Joshi &
 M. Abram i/by M/s.Harilal Thakkar & Co. for the
 petitioner.

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 Mr.R.V. Govilkar for the respondent.

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CORAM : J.P. DEVADHAR, J.

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DATED : 11TH JULY, 2007.

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P.C. :

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 Heard.

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 2. Rule. Rule made returnable forthwith. By

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 consent of parties taken up for final hearing.

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 3. In this case, T.E. Suit No.111/141 of 2000

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 filed by the petitioner in the Court of Small Causes,
 Bombay was disposed of by a consent decree passed on
 16th January, 2007. Thereafter, on 31st January,
 2007 the petitioners made an application for
 execution of the said decree. By the impugned order
 dated 29th March, 2007 the learned Judge, Court of
 Small Causes, Bombay instead of ordering issuance of

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 warrant of possession, suo moto directed appointment
 of Court Commissioner to visit the disputed property
 and to find out as to whether there were any
 occupants in the suit property. Challenging the said
 order, present Writ Petition is filed.

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 4. Mr,.Thakkar, learned Senior counsel for the
 petitioner submits that the impugned order is totally
 perverse and is not in consonance with the provisions
 of the Code of Civil Procedure. He submits that any
 person aggrieved by the decree is entitled to
 obstruct in the execution of the decree, but in an
 execution proceedings the Court cannot appoint a
 Commissioner to find out as to whether there are any
 person aggrieved by the Consent decree.

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 5. Mr.Govilkar, learned Counsel for the

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 respondent submits to the orders of the Court.

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 6. In my view, the impugned order is wholly
 unsustainable in law, because, firstly, in absence of
 any application by any of the parties, the learned
 Judge could not have appointed Court Commissioner of
 his own. Secondly, no reason is given for appointing
 a Court Commissioner. Thirdly, if at all any person
 is aggrieved by the decree, such person is entitled
 to obstruct in the execution of the decree in the

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 manner prescribed under the Code of Civil Procedure.
 Therefore, appointment of a Court Commissioner in the
 execution proceedings initiated by the petitioner is
 wholly unjustified, uncalled for and contrary to law.

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 7. In this view of the matter, impugned order
 dated 29th March, 2007 is quashed and set aside. The
 learned Judge is directed to grant warrant of
 possession in favour of the petitioner subject to
 fulfilment of the requisite conditions, if any.

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 8. Rule is made absolute accordingly with no
 order as to costs.

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 (J.P. DEVADHAR, J.)

Byramjee Jeejeebhoy Private Limited v. Maharashtra State Textile Corporation Limited

Case brief

What is this about?

What did the court decide?

Byramjee Jeejeebhoy Private Limited v. Maharashtra State Textile Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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