Sahebrao Gangadhar Kadam ... vs The Trustees Of The Port Of Bombay ...
2021 Latest Caselaw 10123 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            ORDINARY ORIGINAL CIVIL JURISDICTION

                  INTERIM APPLICATION NO.1566 OF 2021
                                  IN
                          SUIT NO. 517 of 1966


 Sahebrao Gangadhar Kadam                    ... Applicant
      v/s.
 The Trustees of the Port of Bombay           ... Respondents/
                                                Defendants


 Mr. Roop Basu i/b. M/s. The law Point for the plaintiff.
 Mr. S.S. Lanke i/b. S.S.Lanke & associates for the applicant.
 Ms. Geeta P. Sonawane i/b. D'Mello for respondent no.1.
 Ms. Arya Bile i/b. Solomon & co. for the defendants.
 Mrs. Kanchan M. Rane, 1st Asstt. To Court Receiver present.


                   CORAM : DAMA SESHADRI NAIDU, J.

2nd August 2021

P.C.

The Mumbai Port Trust, then the Bombay Port Trust, filed Suit No.517 of 1966 against two defendants: one was said to be a tenant and the other the official assignee. Later, on the 1 st defendant's death, his legal representatives were brought on record. The very next year, the Port Trust had the suit decreed. It was on 15.11.1967. Later, in 1974, it laid execution: EP No.121/1974. In those proceedings, the

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Court appointed a Receiver, who has taken symbolic possession of the property.

2. Now, the applicant has come up with this intervention application; he wants to come on record in a suit disposed of in 1967.

3. Shri Lanke, the learned counsel for the applicant, submits that though the suit was disposed of, the execution proceedings are still pending. According to him, the applicant has been in possession of the property on the strength of a deed of assignment in his favour.

4. To justify why the applicant should be brought on record in the suit, Shri Lanke submits that in Writ Petition No.923 of 2020 filed by the applicant, this Court has protected the applicant's possession. That apart, he also points out to other collateral proceedings. Shri Lanke strenuously contends that even the Receiver has acknowledged that the applicant has had the property. According to him, viewed from any perspective, the applicant's possession remains undisputed, so, by that measure, he ought to be brought on record. Lest his possession should be at stake.

5. On the other hand, the learned counsel for the respondents-- that is, the for the plaintiff and the defendant--in unison submit that the very suit has been disposed of. It was in 1967. Therefore, this Court has become functus officio. They also brought to my notice certain developments about how the Court allowed the Receiver to take

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possession of the property. I reckon, given the scope of this application, their submissions on the merits may have no relevance.

6. Heard the learned counsel for the applicant and the learned counsel appearing for the respondents.

7. Despite very strenuous submissions advanced by the applicant's counsel Shri Lanke, the learned counsel for the applicant, I am unable to agree with the applicant's contention: that a third party must be brought on record in a suit that has already been decreed. And that is without setting aside the decree, at that.

8. As is well established, an appeal is a continuation of the original proceedings, say, a suit. So are the execution proceedings. But in neither case, can a third party insist that he must be a party to the suit that no longer exists. With the appellate court's leave, he may be a party to the appeal; similarly, under very limited circumstances though, he may be a party to the execution proceedings. Better still, a third party apprehends that the decree threatens his rights, he may take recourse to, for example, section 47 (if claiming under either party to the suit), Rules 58, 97, and 99 of Order 21 CPC.

9. That said, if the third party wants to agitate his rights in the suit itself, the decree comes in his way. So he ought to have set it aside. Then, when the suit is restored to file, he may contest it. Indeed, the execution begins when the suit ends. In other words, the pendency of

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execution proceedings does not give licence to any person to reopen the suit.

10. As for the suit, once it is disposed of and so long as the decree subsists, the Court becomes functus officio. A decree inter partes does not affect the third party unless that third party takes under either party to the suit. Here, the applicant is a third party who has nothing to do with the suit. By his own averment, the judgment does not bind him. Then, if his possession is threatened, he may take recourse to appropriate legal proceedings. It seems he has already filed a writ petition and secured some interim protection. He is said to have initiated certain other legal steps, too. In this application, the Court is concerned with the merits and demerits of the proceedings the applicant is said to have initiated.

11. If I confine the discussion to the application at hand, the Court cannot entertain that application because there is no lis pending before this Court in the form of a suit, in which he wants to come on record. The Court, indeed, is functus officio.

Therefore, the application is dismissed. No order on costs.

(DAMA SESHADRI NAIDU, J)

Lata Panjwani, P.S.