Bombay High Court
Arun S.Prabhu vs Rizvi Builders And 2 Ors on 28 February, 2023
Bench: R. I. Chagla
Digitally signed
by JITENDRA
JITENDRA SHANKAR
SHANKAR NIJASURE
NIJASURE Date:
2023.03.03
15:39:35 +0530
20-exal-16616-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
EXECUTION APPLICATION (L) NO.16616 OF 2022
Dr. Arun Prabhu ...Applicant /
Decree Holder
Versus
Rizvi Builders & Ors. ...Respondent /
Ori. Judgment
Debtor
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Mr. Mandar Soman with Lata Dhruv, Ms. Keya Raval and Ms.
Husaina Zaidy i/b. Dhru & Co.
Joel D'Souza i/b. Zakir Basha for Respondent Nos.2(a) and 2(b).
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CORAM : R.I. CHAGLA J.
DATE : 28 February 2023.
ORDER :
1. The Execution Application had come up on 14th
February, 2023, on which date the draft amendment had been
tendered by the learned Advocate for the Applicant / Decree Holder
and draft amendment was allowed to be carried out in the Execution
20-exal-16616-2022.doc
Application.
2. This Court had observed that an Appeal had been filed
from the order of the learned Single Judge dated 10th September,
2009 and which Appeal bearing No.524 of 2009 was dismissed by
reasoned order dated 28th January, 2022. Thereafter, a Review
Petition had been filed by the Respondent Nos.2(a) and 2(b), the
legal heirs of Defendant Nos.2 and 3 in March, 2022 and the Review
Petition though filed had not come up for hearing, when the said
Order was passed.
3. This Court had further observed in the said order that
the order dated 10th September, 2009 of the learned Single Judge
had also been passed against Defendant No.1 - Rizvi Builders, who
had preferred an Appeal, which was dismissed by the Appellate
Bench. From the Appellate Court order, the matter had been taken up
to the Supreme Court. The Supreme Court by order dated 21st
March, 2022 dismissed the SLP by not finding any reason to entertain
the SLP under Article 136 of the Constitution of India. Thus, the
order of the learned Single Judge dated 10th September, 2009 has
attained finality.
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4. It is further observed in the said Order dated 14th
February, 2023 that by the order of the learned Single Judge dated
10th September, 2009 of which execution has been sought in the
above Execution Application, the Defendant No.1 is to execute the
conveyance in favour of the Applicant / Decree Holder within four
weeks of the deposit of the balance consideration. The learned Single
Judge in the said order had directed the second and third Defendants
to join in the Deed of Transfer for passing of title to the Plaintiff. It
was further directed by order dated 10th September, 2009 that in the
event the Defendants failed to execute the Deed of Transfer within
the stipulated period of four weeks from the date of deposit of
balance consideration, the Prothonotary and Senior Master shall
appoint a competent officer to execute the Deed of Transfer on behalf
of the Defendants. It is noted that the deposit of balance
consideration was made on 14th September, 2009. By further order
dated 19th October, 2013 passed by the Appellate Bench, the Court
Receiver had been appointed in respect of the Suit flat and by the
final judgment and order dated 28th January, 2022 passed by the
Appellate Bench of this Court, the Court Receiver was discharged and
stay of the order dated 10th September, 2009 had been vacated.
Though, the Court Receiver had been directed to handover
20-exal-16616-2022.doc
possession of the Suit flat to the flat purchasers, in view of the
application for stay, the order was directed not to be implemented for
the period of two weeks.
5. The Supreme Court has by order dated 21st March, 2022
not chosen to interfere with the order of the Appellate Bench dated
28th January, 2022. In view of considerable time having lapsed since
the passing of the order by the learned Single Judge on 10th
September, 2009, this Court by said order dated 14th February, 2023
had made it clear that as and by way of last opportunity given to the
Respondent Nos.2(a) and 2(b) for moving the Review Petition, the
matter is stood over to today i.e. 28th February, 2023, first on board.
It was further made clear that in the event there is no order of stay
brought by these Respondents, the matter will proceed and no
further time till be granted.
6. Today, it is mentioned by Mr. Soman, the learned
Counsel appearing for the Applicant / Decree Holder, that the Review
Petition of Respondent Nos.2(a) and 2(b) bearing (L) No.10174 of
2022 in Appeal No.524 of 2009 was dismissed by the Division Bench
of this Court by order dated 27th February, 2023. Accordingly, the
order of the learned Single Judge dated 10th September, 2009
20-exal-16616-2022.doc
requires to be implemented.
7. In Column J (2) of the Execution Application, it is prayed
that alternatively, in the event the Defendants failed to execute the
Deed of Transfer in compliance with of the judgment and decree
dated 10th September, 2009 as rectified by order dated 9th October,
2009, the judgment and decree dated 28th January, 2022 passed in
Appeal No.523 of 2009 and Appeal No.524 of 2009, this Court direct
the Prothonotary and Senior Master of this Court to appoint
competent officer to execute the Deed of Transfer on behalf of
Defendants in terms of the judgment and decree dated 10th
September, 2009.
8. Considering that the Defendant No.1 inspite of
remaining present on the prior date i.e. 14th February, 2023 has
failed to make appearance and that the original Defendant Nos.2 and
3 who are now represented by the legal heirs are not willing to join
in the Deed of Transfer and / or comply with the judgment and
decree dated 10th September, 2009, the alternate prayer in Column
J(2) of the Execution Application requires to be granted. Hence, the
following order is passed:-
20-exal-16616-2022.doc
(i) The Prothonotary and Senior Master is directed to nominate an
officer of this Court to execute the Deed of Transfer on behalf of
Defendants in terms of the judgment and decree dated 10th
September, 2009 as rectified by order dated 9th October, 2009
and upheld / confirmed by the judgment and decree dated 28th
January, 2022 passed in Appeal no.523 of 2009 and Appeal
No.524 of 2009, within a period of four weeks from the date of
this Order.
(ii) The Deed of Transfer shall be executed by the nominated
officer of the Prothonotary and Senior Master together with the
Applicant by which the title of the Suit property will be
transferred to the Applicant.
(iii) The officer nominated by the Prothonotary and Senior Master
shall together with the Applicant attend the office of the Sub
Registrar of Assurance and shall execute relevant and incidental
documents for transfer of title of the Suit property in favour of the
Applicant.
(iv) In view of this Order, the notice / warrant to the Defendants
under Order XXI sub Rule 34 of the Code of Civil Procedure, 1908
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is dispensed with.
(v) The Execution Application is accordingly disposed of.
9. Mr. D'Souza, learned Counsel appearing for the
Respondent Nos.2a and 2b has applied for stay of this Order.
Considering, that this order is passed in the above Execution
Application for executing the judgment and decree of the learned
Single Judge of this Court passed over 13 years back i.e. 10th
September, 2009, the Application for stay is rejected.
[ R.I. CHAGLA J. ]
