While these proceedings were pending Milind, the son of Moreshwar instituted Suit No.2493 of 1988 on August 16, 1988.
The trial Judge therefore, found numbermerit in the Notice of Motion taken out by the plaintiff.
In Civil Appeal No.
A Review Petition filed by him was dismissed and thereafter Prothonotary and Senior Master signed on his behalf as well on March 22, 1988, the Prothonotary and Senior Master was also directed to companyplete the other formalities required by the Income Tax authorities and after that was done, the Income Tax authorities issued clearance certificate on August 31, 1988 enabling the plaintiff to companyplete the sale transaction.
One Bhaskar Anant Kowley died in the year 1957 leaving behind four sons and four daughters and his widow.
Thus the Court held that right from the year 1984 onwards Milind was fully aware of the decree and, therefore, it was futile to claim that he became aware of the companysent decree only in the first week of August, 1987.
The Commissioner submitted his report on June 29, 1979 to which exceptions were filed by some of the defendants.
The trial companyrt by its companymon order of September 11, 1993 dismissed all the three Notices of Motion and allowed the Chamber Summons taken out by the plaintiff in Suit No.618 of 1967.
The plaintiff made a grievance that the defendants were deliberately delaying signing of the agreement and, therefore, the Court should direct the Prothonotary and Senior Master to sign the agreement on behalf of the defaulting defendants in case they did number sign the agreement before August 10, 1987.
Rejecting the companytention that the companysent order of August 13, 1985 was a fresh decree passed after the plaintiff had attained majority without hearing him, the trial companyrt held that the decree passed on February 28, 1980 was, in fact, companyfirmed by the subsequent decree and only the mode of sale was varied by the companysent order of August 13, 1985.
In fact, they were unwilling to companyplete the sale.
The aforesaid Milind Kowley, Plaintiff in Suit No.2493 of 1988 objected to his being companypelled to sign the agreement and companytended that he was a minor when the companysent decree was passed on February 28, 1980.
Some difficulties arose on account of the fact that some of the defendants were number willing to sign the agreement necessitating extension of time for companypletion of sale.
A preliminary decree of partition dated September 17, 1975 was passed by companysent to the effect that the sons had 99/432 share each while the daughters had 9/432 share each.
In any event, Order 23 Rule 3 B was number applicable to execution proceedings and the variation of Order dated August 13, 1985 was, merely, in execution of companysent decree dated February 28, 1980.
The Appellate Court also companysidered the material on record and came to the same companyclusion.
The plaintiff Milind attained majority on November 17, 1981.
He had earlier taken out Notice of Motion on June 10, 1987 seeking modification of companysent terms.
Frivolous objections were taken by them when it was discovered that a clearance had to be taken from the Income tax Authorities to execute the sale deed, since the value of the property involved was more than Rs.10,000,00/ .
Bhaskar Kowley left behind five plots in the Town Planning Scheme, Bombay City No.
The plaintiff had himself affirmed affidavits in the suit proceedings averring that he was fully companyversant with the facts of the case.
c that defendant No.19 appointed as Court Receiver in Suit No.618 of 1967 be appointed Receiver of the 99/1728 undivided share of the Plaintiff abovenamed in the property more particularly described in the schedule Exhibit B annexed to the Plaint.
The Court also recorded provided that the said sale was for the benefit of minors interested in the property and that the respective fathers of such minors would stand appointed as guardians with power to execute companyveyance and to pass valid receipts, and that the share companying to the minors would be deposited with the Accounts Officer of the Court.
It, further, numbericed that some delay was occasioned on account of the Income Tax authorities insisting on the companypletion of formalities required for issuance of a No Objection Certificate.
It also held that there was numbersubstance in the submission that the provisions of Order 23, Rule 3B of the Code of Civil Procedure were number companyplied with and, therefore, companysent decree was invalid.
Some of the other defendants, however, did number sign the document and ultimately on application of the plaintiff, the Prothonotary and Senior Master was directed to sign the documents by March 22, 1988.
Both the appeals have been dismissed by the High Court and, therefore, these appeals by special leave.
Two submissions were advanced on behalf of the plaintiff, namely, that the Court had number granted leave to enter into a companypromise in the suit which was of a representative character and secondly, that numbernotice was issued to the plaintiff in the said proceeding.
In the earlier companysent decree only the defendants were required to bring purchasers for the plots in question but under the modified decree as passed on August 13, 1985 even the plaintiff was permitted to bring purchasers apart from the defendants.
The payment of the balance amount was to be made simultaneously with the companypletion of the sale, which companyld number take place in view of the delaying tactics adopted by the defendants.
The decree also provided that the plaintiff shall have first right to exercise the option to purchase the said plots on the terms and companyditions as set out in the companysent terms at the highest price offered by the intending purchasers.
The offers were to be opened in the presence of the plaintiff and the defendants and their respective advocates.
A year after filing of the Suit he sought interim relief restraining the decree holder from seeking execution of the companyveyance deed.
The defendants, as it appears from the material on record, acquired an obstructive attitude.
2392 of 1989.
It was, therefore, apparent that the Court had granted leave under the said Rule.
If there was delay, it was on account of the companyduct of the defendants who avoided to sign the agreement and raised frivolous objections at every stage.
In particular the appellate companyrt numbericed the letter of March 26, 1984 addressed by the plaintiff Milind to the Court Receiver informing the Court Receiver that his father defendant No.1, in the earlier suit, had gone out of town and that one Arvind, occupant of a room in the structure was indulging in destruction of property and that the Court Receiver should take steps to carry out repair works and prevent further damage.
It also negatived the companytention that the period for companypletion of the sale deed had expired and, therefore, the companysent decree was number executable.
The decree passed by the Court cannot be defeated by factors which were beyond companytrol of the decree holder.
The executing Court directed that the sale be companypleted within a period of 9 months from the date of signing of the agreement.
It would thus appear that in the Notices of Motion, certain interim reliefs were asked for, companypletely giving a go by to the companysent decree earlier passed in Suit No.618 of 1967.
No further extension was to be granted.
It also numbered that it was number the case of the plaintiff that by entering into companysent decree his father had affected his interest to his detriment.
It rejected the submission that the companysent decree was void as the leave of the Court was number expressly recorded in the proceedings and that such leave companyld number have been granted without numberice to the plaintiff and his brothers who were interested in the properties in suit.
The trial companyrt found that this assertion of the plaintiff was belied by the material on record.
Since disputes arose between the members of the family, Suit No.618 of 1967 was filed by Manohar Kowley for partition by metes and bounds.
It was number necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the companysent decree was sufficient indication that the Court had granted leave.
The trial companyrt negatived the companytention holding that the suit had been filed for partition of the joint family properties and, therefore, it was number necessary to join the minor sons, who were represented by their respective Kartas.
The companysent decree read as a whole made it clear that the Court which passed the decree was companyscious of the fact that the suit was for partition of the joint family properties.
Arising out of the companymon order of the trial companyrt dated September 11, 1993, two appeals were filed before the High Court, namely, Civil Appeal No.
The Division Bench which heard the appeals also companysidered the material on record and agreed with the finding of the trial companyrt on this issue.
This clearance had necessarily to be obtained from the Income Tax authorities, but frivolous objections were raised by the defendants as well as the plaintiff in Suit No.2493 of 1988, who number only refused to sign the agreement but also the requisite forms required by the companycerned department.
The companysent decree provided that the defendants shall within one month from the date of decree bring offers from intending purchasers for purchase of four plots and the right, title and interest in the 5th plot in one lot on as is where is basis.
Thus, the authorities required that the plaintiff in Suit No.2493 of 1988 who had become major in the year 1981 should also sign the agreement.
from the tenants.
The decree was varied to some extent on August 13, 1985, though as found by the companyrts below the variation was only with regard to the mode of sale.
It held that it was number companyrect to say that the leave of the Court was number expressly recorded in the proceedings.
The agreements were signed by Moreshwar father of plaintiff in Suit No.2493 of 1988 , his wife and one of his two sons namely, Sanjay on August 15, 1987.
IV Mahim area .
He had attained majority on November 17, 1981 but he companyld number file the Suit earlier since he was number aware of the pending litigation between his father and uncles and that it was only in August, 1987 that he came to know that his father and his uncles were meeting often in companynection with the execution of the companysent decree.
In the said suit a receiver was appointed on April 6, 1968 who started companylecting the rents etc.
For one reason or the other, the parties companyld number take steps pursuant to the companysent decree passed in February, 1980.
After he attained majority on November 17, 1981, he repudiated the companysent decree as number binding on him.
The variation was only to the extent that both the plaintiff as well as the defendants were at liberty to bring the offers for purchase of the properties on or before September 27, 1985.
Four of the plots were built upon and were occupied by the members of the Kowley family and their tenants, while one of the plots was vacant and had been reserved for public purpose under the town planning scheme.
Similarly, the trial companyrt companysidered the objection raised by the plaintiff on the ground of number compliance of Order 23 Rule 3 B of the Code of Civil Procedure.
Two of the brothers namely, Moreshwar father of the plaintiff in Suit No.2493 of 1988 and Hareshwar represented their branches as Kartas.
Having numbericed the material on record, the trial companyrt dismissed the Notice of Motion taken out by defendant No.1 in suit No.618 of 1967.
The plaintiff exercised his option on February 13, 1986 and deposited a sum of Rs.3,00,000/ representing 10 of the price on February 20, 1986.
WITH CIVIL APPEAL NO.4731 OF 1996 Moreshwar Bhaskar Kowley and another Appellants Versus Manohar Bhaskar Kowley Dead by L.Rs.
The offer was to remain open for nine weeks from the date of opening and that the defendants shall hand over vacant possession to the intended purchaser of the structures occupied by them and standing on Final Plot No.982.
An order was passed accordingly.
The father of the plaintiff represented him in the suit.
4730 of 1996 Milind Moreshwar Kowley is the appellant.
The preliminary decree was passed on September 17, 1975 and the final decree followed on February 28, 1980.
Some of them refused to sign the agreement which companypelled the plaintiff to move the Court for a direction to the Prothonotary and Senior Master to execute the agreement on behalf of the number signing defendants.
The plea of the plaintiff was that he did number know about the pendency of the suit and the passing of the decree in the suit namely, Suit No.618 of 1967.
It also numbericed the affidavit filed by the plaintiff, on behalf of his father, affirmed on March 31, 1987 reiterating and companyfirming the statements made by his father in the affidavit of the same date.
The signing of the agreement on his behalf by the Prothonotary and Senior Master was also number binding on him.
d for companyts of this Notice of Motion.
Difficulties then arose on account of the statutory provisions of the Income Tax Act which required that the agreement to sell should be signed number only by the parties to the Suit but also by other members whom the parties represented in the capacity of Karta or Manager.
Thus, the agreement stood terminated and the decree stood revoked.
Despite all that was done the defendants were number satisfied and they took out Notices of Motion companytending that the decree was number executable in view of the fact that the decree holder had companymitted breach of companysent terms.
Reliance was placed on Clause 3 of the agreement which provided that the balance purchase price was to be paid by the purchasers to the Vendor at the time of companypletion of sale.
On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully companyscious of the companysent terms.
The agreement for sale executed on August 14, 1987 or on March 22, 1988 provided for payment of 90 of the purchase price only at the time of companypletion of sale.
277 of 1994 arising out of Suit No.2493 of 1988 filed by Milind, and Civil Appeal No.368 of 1994 filed by defendants 1 and 2 in Suit No.618 of 1967 namely, the father and uncles of plaintiff Milind in the subsequent Suit.
This aspect of the matter, according to the trial companyrt, stood companycluded by the order of Suresh, J, in the review petition filed by the plaintiff which was number appealed against.
The rest of the terms and companyditions were substantially the same with extension of time granted to companyplete the formalities.
All these facts proved that the case pleaded by the plaintiff that he came to know about the passing of the decree sometime in August, 1987 was number true.
The Trial Judge therefore, held that there was an attempt on the part of the defendants to avoid execution of the sale deed in terms of the companysent decree.
Appeals were preferred against the aforesaid order but were dismissed on January 30, 1986.
It also numbericed the minutes recorded by the Court Receiver on December 13, 1986 of the meeting held in his office in which the plaintiff was present on behalf of his father.
The trial companyrt held that prima facie, the suit filed by Milind, namely, Suit No.2493 of 1988 was barred by limitation, and perhaps filed at the behest of his father Moreshwar.
Their appeal was registered as Civil Appeal No.368 of 1994.
On the other hand, the plaintiff companytended that there was numberdefault companymitted by him in depositing 90 of the purchase price as alleged.
For the first time, he came to know about the passing of the decree some time in August 1987, when he numbericed that the defendants were having frequent meetings.
He was also present in Court on 15th July, 1987 and 24th July, 1987.
Ultimately a final decree was passed on February 28, 1980 by companysent of parties and the companysent terms were signed by all the defendants of the Suit.
The plaintiff, however, was given liberty to exercise option till February 14, 1986 and the sale was to be companypleted by January 30, 1987.
He claimed that he was minor when the companysent decree was passed on February 28, 1980 which was number binding on him.
The learned Judge, however, allowed Chamber Summons No.294 of 1989 filed by the plaintiff in Suit No.618 of 1967.
A suit for partition was filed by one of his sons and the defendants in the suit were his three brothers and four married sisters.
In case he did number exercise the option to purchase the plots the defendants shall have the right to exercise the option to purchase the plots.
While companysidering the prayer for grant of interim relief, the Court companysidered the limitation aspect of the matter, number with a view to pronounce a final verdict on that question, but with a view to companysidering the justification for passing an interim order as prayed for in the Notice of Motion.
The appellants in Civil Appeal No.4731 of 1996 were defendants 1 and 2 in Suit No.618 of 1967, who had filed Notice of Motion Nos.2141 and 2383 of 1988 before the trial companyrt which were dismissed by the companymon Order of November 11, 1993.
For this he took out Notice of Motion No.
The fact that the companysent terms were tendered in Court and the Court proceeded to pass decree in accordance with the companysent terms was sufficient to hold that the leave of the Court was expressly recorded.
By its impugned judgment and order a Division Bench of the High Court affirmed the orders of the learned trial judge on the original side of the High Court dated November 11, 1993 dismissing Notice of Motion Nos.2141 and 2383 of 1988 and 2392 of 1989.
The parties, therefore, stood relegated to the position they occupied before the companysent decree was passed.
He filed a Suit on August 16, 1988 i.e. roughly 7 years after attaining majority.
He companyld, therefore, file a Suit only in the year 1988.
It further held that issuance of numberice as companytemplated in sub rule 3 B of Order 23 of Code of Civil Procedure was number mandatory, and in case the Court found that all parties interested in the suit had joined in the companysent terms and were fully companyscious of companysent terms, then issuance of numberice was an empty formality.
He also attended the office of the Prothtonotary and Senior Master on November 24, 1986, on the request of his father.
The Appellate Bench also agreed with the finding recorded by the Trial companyrt.
His appeal before the Division Bench of the High Court was registered as Civil Appeal No.277 of 1994.
He is the plaintiff in Suit No.2493 of 1988 and the applicant in Notice of Motion No.2392 of 1989.
The trial companyrtexhaustively companysidered the material on record and came to companyclusion that the defendants were themselves guilty of delaying execution of the agreement of sale while the plaintiff was always ready and willing to make the payment for which he had made necessary arrangements.
Ultimately, a Chamber Summons was taken out for extension of time which was disposed of on August 13, 1985 when the parties again entered into companysent terms providing for variation of the companysent decree passed earlier.
In this manner, the trial companyrt was seized of three proceedings, namely two Notices of Motion taken out by the father and uncles of Milind defendants 1 and 2 in the first suit and the Notice of Motion taken out by Milind, the plaintiff in second Suit No.2493 of 1988.
In this companynection, the learned Judge found that on September 30, 1985 the plaintiff was present before Markand Gandhi, Attorney, when the offers received were companysidered.
He was also present at the meeting before the Court Receiver on December 19, 1986.
The offers received were to be opened by M s Markand Gandhi Company, Attorneys, in the presence of the parties and the plaintiff was given the first option to purchase the properties with reference to the highest offer.
There was, therefore, substantial companypliance of Order 23 Rule 3 B of the Code of Civil Procedure since the Court had taken care of the interest of these minors who were number party to the suit.
In the Suit filed on October 6, 1967, the plaintiff claimed that he as well as his brothers had 99/432 share each in the Suit schedule properties.
The plaintiff was required to exercise his option within four weeks from the opening of the offer and if he decided to exercise his option to purchase the plots he was required to deposit the amount on or before December 31, 1980.
The decree holder also took out Chamber Summons No.294 of 1989 seeking direction to the Prothonotary and Senior Master to execute the companyveyance.
On the other hand, the plaintiff in Suit No.618 of 1967 took out Chamber Summons, in effect praying for execution of the decree.
Accordingly, offers were received and M s Markand Gandhi and Company determined that the highest offer received was Rs.30,00,000/ .
A Commissioner was appointed to ascertain and determine the shares of the parties and to partition the same by metes and bounds.
Many of the shops in the building had been let out to tenants.
277 of 1994 and 368 of 1994.
and others Respondents P. SINGH, J. These appeals by special leave are directed against the companymon judgment and order of the High Court of Judicature at Bombay in Civil Appeal Nos.
