Dismissed

Ulhas Bhimrao Khandtale v. Devrubai Bhimrao Khadtale and Ors.

Bombay HC6 Feb 2008NMS/335/2008

Case brief

AI extract

What is this about?

In a partition suit involving a flat, the single judge refused to grant any ad-interim relief to stay the operation of an earlier order directing the sale of the property. The court rejected the application due to non-compliance with time limits and noted the respondent's obstruction of the court receiver.

What did the court decide?

Ad-interim orders refused; notice of motion to be heard in normal course; earlier ad-interim order vacated.

1.Ad-interim reliefs are sought staying the operation of the order dated 28.6.2007 passed by D.K. Deshmukh, J. By the said order it was recorded that it was agreed between all the parties except Defendant No.2 that Flat No.68 be sold and that the sale proceeds be divided amongst the co-sharers.

2.The Plaintiff and Defendant Nos.2 to 5 are brothers and sisters. Defendant No.1 is their mother. The suit is filed for administration of the estate of the husband of Defendant No.1 i.e. the father of the Plaintiff and Defendant Nos.1 to 5. One of the items of the estate is Flat No.68 in the 6th Defendant -

3.It is true that Defendant No.2 had not consented to the said order. By the said order, liberty was granted to Defendant No.2 to make an appropriate application for modification or cancellation of the order within four weeks.

4.Defendant No.2 filed an appeal being Appeal No.525 of 2007 against the said order. The Appeal Court by an order dated 9.10.2007 allowed Defendant No.2 to withdraw the appeal and granted him an opportunity to make an application before the learned single Judge in terms of clause 6(iv) of the order dated 28.6.2007. Time to make an application was extended by four weeks from the date of the order of the Appeal Court.

5.This Notice of Motion was taken out on 22.1.2008. In view of the order of the Appeal Court dated 9.10.2007, it is not possible to entertain this application as it is not taken out within the time stipulated by the Appeal Court.

admits that he has only a 1/6th share in the said flat. Defendant No.2 does not deny that Defendant Nos.1 to 5 have an equal share in the said flat. What Defendant No.2 seeks to do is to usurp the entire property to the exclusion of Defendant Nos.1 to 5. Defendant No.1 his mother is now 83 years old. There is no justification whatsoever for Defendant No.2 to deny her share also. The Plaintiff’s offer to accommodate her in the flat is of no substance whatsoever. It is her right to reside therein in any event. The Plaintiff merely seeks to take undue advantage of the laws delays.

7.The Plaintiff is willing to occupy the flat as the agent of the Court Receiver subject to payment of market rate for such use as royalty. In that event of course the other parties would be entitled to withdraw their proportionate shares. I see no justification to permit the Plaintiff to bargain with the Court on this issue in the above facts.

8.It further appears that Defendant No.2 has obstructed the Court Receiver’s representative who visited the site to comply with the order of the learned single Judge. He ought never to have done so.

Ulhas Bhimrao Khandtale v. Devrubai Bhimrao Khadtale and Ors.

Case brief

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What did the court decide?

Ulhas Bhimrao Khandtale v. Devrubai Bhimrao Khadtale and Ors.

Case brief

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What did the court decide?

What the court decided

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