Partly allowed

Bumbai Mahiboob Shiledar and Ors. v. Hanmantrao Nilappa Patil and Ors.

Bombay HC29 Apr 2010WP/1499/2010

Case brief

AI extract

What is this about?

A Single Judge of the Bombay High Court, while allowing a petition challenging the appointment of a Court Commissioner for executing a sale deed, modified the order. It was directed that the Commissioner may proceed to execute the conveyance only after following the mandatory procedure under Order XXI Rule 34 of the CPC. The appointment itself was confirmed, but merits were kept open.

What did the court decide?

The appointment of the Court Commissioner is confirmed, but the order is modified to direct compliance with Order XXI Rule 34 CPC before executing the conveyance.

Bumbai Mahiboob Shiledar and Ors. Vs Hanmantrao Nilappa Patil and… — Partition | Bombay HC (2010)

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Ash

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1499 OF 2010

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Bumabi Mahiboob Shiledar & Ors. .. Petitioners

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Hanmantrao Nilappa Patil & Ors.

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.. Respondents

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Shri Surel S. Shah for the Petitioners. Shri P.M. Mengane for Respondent No.1.

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CORAM : A.S.OKA, J. DATE : 29TH APRIL 2010

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P.C:

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. Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent No.1.

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2.The challenge in this Writ Petition under
Article 227 of the Constitution of India is to an order
dated 6th January, 2010 by which a Court Commissioner

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has been appointed for execution of a Sale Deed in an
execution application. The execution application is
for executing a decree for specific performance of
contract of sale of immovable property. The 1st

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Respondent is the decree holder and the Petitioners are
the Judgment Debtors.

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3.By the impugned order, the learned Trial
Judge has appointed an Advocate as the Court
Commissioner and he has been directed to execute the
sale deed. The grievance of the Petitioners is that
the procedure prescribed under Rule 34 of Order XXI of
the Code of Civil Procedure, 1908 has not been followed
and straightway the Court Commissioner has been
directed to execute the sale deed. The learned counsel
appearing for the 1st Respondent � decree holder pointed
out that the Application was made by the 1st Respondent
at Exhibit � 61 in which he has stated that he was
willing to produce the draft of the conveyance.

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4.Before the Court Commissioner executes a
conveyance, the procedure provided under Rule 34 of
Order XXI of the said Code has to be followed to enable
the judgment debtors to consider the draft conveyance

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and to submit their objections, if any. By the
impugned order, a complete departure has been made from
the provisions of Rule 34 of Order XXI of the said
Code. Though the appointment of the Court Commissioner
cannot be set aside, the impugned order will have to be
modified by directing that the conveyance shall be
executed only after following the aforesaid procedure.

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5.Hence, the Petition is disposed of by passing

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the following order.

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2010 is modified.

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(b)TheappointmentoftheCourt
Commissioner for the execution of
conveyanceisherebyconfirmed.

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However, the Trial Court is directed to
follow the procedure prescribed under
Rule 34 of Order XXI of the said Code.
It is directed that only after the
compliance is made with the requirements
of Rule 34 of Order XXI of the said
Code, the Court Commissioner will
execute the conveyance.

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(c)The Petition is partly allowed in above
terms with no orders as to costs.

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(d)All contentions of the parties on merits
are kept open.

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(A.S.OKA, J)

Bumbai Mahiboob Shiledar and Ors. v. Hanmantrao Nilappa Patil and Ors.

Case brief

What is this about?

What did the court decide?

Bumbai Mahiboob Shiledar and Ors. v. Hanmantrao Nilappa Patil and Ors.

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

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