{"id":256362,"date":"2006-05-12T00:00:00","date_gmt":"2006-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/milind-moreshwar-kowley-vs-manohar-bhaskar-kowley-dead-by-on-12-may-2006"},"modified":"2018-08-22T05:36:26","modified_gmt":"2018-08-22T00:06:26","slug":"milind-moreshwar-kowley-vs-manohar-bhaskar-kowley-dead-by-on-12-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/milind-moreshwar-kowley-vs-manohar-bhaskar-kowley-dead-by-on-12-may-2006","title":{"rendered":"Milind Moreshwar Kowley vs Manohar Bhaskar Kowley (Dead) By … on 12 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Milind Moreshwar Kowley vs Manohar Bhaskar Kowley (Dead) By … on 12 May, 2006<\/div>\n
Author: B Singh<\/div>\n
Bench: B.P. Singh, S.B. Sinha<\/div>\n
           CASE NO.:\nAppeal (civil)  4730 of 1996\n\nPETITIONER:\nMilind Moreshwar Kowley\n\nRESPONDENT:\nManohar Bhaskar Kowley (Dead) by L.Rs.and others\n\nDATE OF JUDGMENT: 12\/05\/2006\n\nBENCH:\nB.P. SINGH & S.B. SINHA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
WITH
\nCIVIL APPEAL NO.4731 OF 1996
\nMoreshwar Bhaskar Kowley and another\t\t       Appellants
\nVersus
\nManohar Bhaskar Kowley (Dead) by L.Rs.\n<\/p>\n
and others  \t\t\t\t\t\t\t      Respondents\n\n\n\nB.P. SINGH, J.\n\n\n<\/pre>\n
\tThese appeals by special leave are directed against the common
\njudgment and order of the High Court of Judicature at Bombay in Civil
\nAppeal Nos. 277 of 1994 and 368 of 1994.  By its impugned judgment and
\norder a Division Bench of the High Court affirmed the orders of the learned
\ntrial judge on the original side of the High Court dated November 11, 1993
\ndismissing Notice of Motion Nos.2141 and 2383 of 1988 and 2392 of 1989.
\nThe learned Judge, however, allowed Chamber Summons No.294 of 1989
\nfiled by the plaintiff in Suit No.618 of 1967.\n<\/p>\n
\tIn Civil Appeal No. 4730 of 1996 Milind Moreshwar Kowley is the
\nappellant.  He is the plaintiff in Suit No.2493 of 1988 and the applicant in
\nNotice of Motion No.2392 of 1989.  His appeal before the Division Bench of
\nthe High Court was registered as Civil Appeal No.277 of 1994.\n<\/p>\n
\tThe appellants in Civil Appeal No.4731 of 1996 were defendants 1
\nand 2 in Suit No.618 of 1967, who had filed Notice of Motion Nos.2141 and
\n2383 of 1988 before the trial court which were dismissed by the common
\nOrder of November 11, 1993.  Their appeal was registered as Civil Appeal
\nNo.368 of 1994.  At the threshold, we may notice that the Notice of Motion
\nwere taken out for grant of interim orders which were rejected by the trial
\ncourt and affirmed by the Appellate Bench of the High Court.\n<\/p>\n
\tThe case has a long chequered history and having regard to the
\nmanner in which the litigation has been carried on, the High Court appears
\nto be justified in observing that the litigation has been carried on by the
\nmembers of the family incurring huge expenses only to delay the
\nproceedings and to avoid execution of a consent decree by raising frivolous
\ncontentions.  We may, however, add that since we are dealing with appeals
\nagainst orders refusing interim relief, any observation made by us should not
\nbe construed as expression of final opinion so as to adversely affect the
\nrights of the parties in the pending litigation.\n<\/p>\n
\tIt is necessary to notice the various proceedings taken in the courts
\nbelow with a view to appreciate the submissions urged before us.\n<\/p>\n
We may also notice at this stage that the plaintiff in Suit No.2493 of
\n1988 which was filed by him several years after attaining majority is the son
\nof defendant No.1 in Suit No.618 of 1967 and one of the appellants in
\nAppeal No.368 of 1994.  In the aforesaid Suit No.618 of 1967, a consent
\ndecree was passed which has given rise to the litigation that followed.  We
\nshall first refer to the facts of Suit No.618 of 1967.\n<\/p>\n
One Bhaskar Anant Kowley died in the year 1957 leaving behind four
\nsons and four daughters and his widow.  A suit for partition was filed by one
\nof his sons and the defendants in the suit were his three brothers and four
\nmarried sisters.  Bhaskar Kowley left behind five plots in the Town Planning
\nScheme, Bombay City No.IV (Mahim area). Four of the plots were built
\nupon and were occupied by the members of the Kowley family and their
\ntenants, while one of the plots was vacant and had been reserved for public
\npurpose under the town planning scheme.   Many of the shops in the
\nbuilding had been let out to tenants.  Since disputes arose between the
\nmembers of the family, Suit No.618 of 1967 was filed by Manohar Kowley
\nfor partition by metes and bounds.  In the Suit filed on October 6, 1967, the
\nplaintiff claimed that he as well as his brothers had 99\/432 share each in the
\nSuit schedule properties.  In the said suit a receiver was appointed on April
\n6, 1968 who started collecting the rents etc. from the tenants.  A preliminary
\ndecree of partition dated September 17, 1975 was passed by consent to the
\neffect that the sons had 99\/432 share each while the daughters had 9\/432
\nshare each.  A Commissioner was appointed to ascertain and determine the
\nshares of the parties and to partition the same by metes and bounds.  The
\nCommissioner submitted his report on June 29, 1979 to which exceptions
\nwere filed by some of the defendants.  Ultimately a final decree was passed
\non February 28, 1980 by consent of parties and the consent terms were
\nsigned by all the defendants of the Suit.  Two of the brothers namely,
\nMoreshwar (father of the plaintiff ) in Suit No.2493 of 1988 and Hareshwar
\nrepresented their branches as Kartas.  The consent decree provided that the
\ndefendants shall within one month from the date of decree bring offers from
\nintending purchasers for purchase of four plots and the right, title and
\ninterest in the 5th plot in one lot on as is where is basis.  The offer was to
\nremain open for nine weeks from the date of opening and that the defendants
\nshall hand over vacant possession to the intended purchaser of the structures
\noccupied by them and standing on Final Plot No.982.  The offers were to be
\nopened in the presence of the plaintiff and the defendants and their
\nrespective advocates.  The decree also provided that the plaintiff shall have
\nfirst right to exercise the option to purchase the said plots on the terms and
\nconditions as set out in the consent terms at the highest price offered by the
\nintending purchasers.  The plaintiff was required to exercise his option
\nwithin four weeks from the opening of the offer and if he decided to exercise
\nhis option to purchase the plots he was required to deposit the amount on or
\nbefore December 31, 1980.  In case he did not exercise the option to
\npurchase the plots the defendants shall have the right to exercise the option
\nto purchase the plots.\n<\/p>\n
For one reason or the other, the parties could not take steps pursuant
\nto the consent decree passed in February, 1980.  Ultimately, a Chamber
\nSummons was taken out for extension of time which was disposed of on
\nAugust 13, 1985 when the parties again entered into consent terms providing
\nfor variation of the consent decree passed earlier.  The variation was only to
\nthe extent that both the plaintiff as well as the defendants were at liberty to
\nbring the offers for purchase of the properties on or before September 27,
\n1985.  No further extension was to be granted.  The offers received were to
\nbe opened by M\/s Markand Gandhi & Company, Attorneys, in the presence
\nof the parties and the plaintiff was given the first option to purchase the
\nproperties with reference to the highest offer.  Accordingly, offers were
\nreceived and M\/s Markand Gandhi and Company determined that the
\nhighest offer received was Rs.30,00,000\/-.  It is not necessary to refer to
\nsome other proceedings taken by the plaintiff, but suffice it to say that on
\nNovember 5, 1985, the plaintiff was given further time to exercise his
\noption.  Appeals were preferred against the aforesaid order but were
\ndismissed on January 30, 1986.  The plaintiff, however, was given liberty to
\nexercise option till February 14, 1986 and the sale was to be completed by
\nJanuary 30, 1987.  The plaintiff exercised his option on February 13, 1986
\nand deposited a sum of Rs.3,00,000\/- representing 10% of the price on
\nFebruary 20, 1986.  Some difficulties arose on account of the fact that some
\nof the defendants were not willing to sign the agreement necessitating
\nextension of time for completion of sale.  The executing Court directed that
\nthe sale be completed within a period of 9 months from the date of signing
\nof the agreement.  The agreements were signed by Moreshwar (father of
\nplaintiff in Suit No.2493 of 1988), his wife and one of his two sons namely,
\nSanjay on August 15, 1987.  He had earlier taken out Notice of Motion on
\nJune 10, 1987 seeking modification of consent terms.  The plaintiff made a
\ngrievance that the defendants were deliberately delaying signing of the
\nagreement and, therefore, the Court should direct the Prothonotary and
\nSenior Master to sign the agreement on behalf of the defaulting defendants
\nin case they did not sign the agreement before August 10, 1987.  An order
\nwas passed accordingly.  Some of the other defendants, however, did not
\nsign the document and ultimately on application of the plaintiff, the
\nProthonotary and Senior Master was directed to sign the documents by
\nMarch 22, 1988.\n<\/p>\n
Difficulties then arose on account of the statutory provisions of the
\nIncome Tax Act<\/a> which required that the agreement to sell should be signed
\nnot only by the parties to the Suit but also by other members whom the
\nparties represented in the capacity of Karta or Manager.  Thus, the
\nauthorities required that the plaintiff in Suit No.2493 of 1988 who had
\nbecome major in the year 1981 should also sign the agreement.  The
\naforesaid Milind Kowley, Plaintiff in Suit No.2493 of 1988 objected to his
\nbeing compelled to sign the agreement and contended that he was a minor
\nwhen the consent decree was passed on February 28, 1980.  After he attained
\nmajority on November 17, 1981, he repudiated the consent decree as not
\nbinding on him.  A Review Petition filed by him was dismissed and
\nthereafter Prothonotary and Senior Master signed on his behalf as well on
\nMarch 22, 1988, the Prothonotary and Senior Master was also directed to
\ncomplete the other formalities required by the Income Tax authorities and
\nafter that was done, the Income Tax authorities issued clearance certificate
\non August 31, 1988 enabling the plaintiff to complete the sale transaction.\n<\/p>\n
Despite all that was done the defendants were not satisfied and they
\ntook out Notices of Motion contending that the decree was not executable in
\nview of the fact that the decree holder had committed breach of consent
\nterms.  While these proceedings were pending Milind, the son of Moreshwar
\ninstituted Suit No.2493 of 1988 on August 16, 1988.  He claimed that he
\nwas minor when the consent decree was passed on February 28, 1980 which
\nwas not binding on him.  The signing of the agreement on his behalf by the
\nProthonotary and Senior Master was also not binding on him.  He had
\nattained majority on November 17, 1981 but he could not file the Suit earlier
\nsince he was not aware of the pending litigation between his father and
\nuncles and that it was only in August, 1987 that he came to know that his
\nfather and his uncles were meeting often in connection with the execution of
\nthe consent decree.  He could, therefore, file a Suit only in the year 1988.  A
\nyear after filing of the Suit he sought interim relief restraining the decree
\nholder from seeking execution of the conveyance deed.  For this he took out
\nNotice of Motion No. 2392 of 1989.\n<\/p>\n
In this manner, the trial court was seized of three proceedings, namely
\ntwo Notices of Motion taken out by the father and uncles of Milind
\n(defendants 1 and 2 in the first suit) and the Notice of Motion taken out by
\nMilind, the plaintiff in second Suit No.2493 of 1988.  The decree holder also
\ntook out Chamber Summons No.294 of 1989 seeking direction to the
\nProthonotary and Senior Master to execute the conveyance.  The trial court
\nby its common order of September 11, 1993 dismissed all the three Notices
\nof Motion and allowed the Chamber Summons taken out by the plaintiff in
\nSuit No.618 of 1967.  The trial court held that prima facie, the suit filed by
\nMilind, namely, Suit No.2493 of 1988 was barred by limitation, and perhaps
\nfiled at the behest of his father Moreshwar.  It also negatived the contention
\nthat the period for completion of the sale deed had expired and, therefore,
\nthe consent decree was not executable.  It also held that there was no
\nsubstance in the submission that the provisions of Order 23, Rule 3B of the
\nCode of Civil Procedure were not complied with and, therefore, consent
\ndecree was invalid.\n<\/p>\n
Arising out of the common order of the trial court dated September
\n11, 1993, two appeals were filed before the High Court, namely, Civil
\nAppeal No. 277 of 1994 arising out of Suit No.2493 of 1988 filed by Milind,
\nand Civil Appeal No.368 of 1994 filed by defendants 1 and 2 in Suit No.618
\nof 1967 namely, the father and uncles of plaintiff Milind in the subsequent
\nSuit.  Both the appeals have been dismissed by the High Court and,
\ntherefore, these appeals by special leave.\n<\/p>\n
Before adverting to the findings recorded by the trial court and the
\nappellate court, we may notice the prayers made in the Notices of Motion
\ntaken out by defendants 1 and 2 in Suit No.618 of 1967.  They are
\nsubstantially in the same terms.  The relevant part of the Notice of Motion
\nNo.2141 of 1988 reads as follows:-\n<\/p>\n
“(a) That this Hon’ble Court be pleased to grant the
\nDefendant No.2 leave to sell, assign, transfer and
\notherwise dispose of his entire Undivided share and all
\nthe right, title and interest in or to the suit property being
\nmore particularly described in paragraphs 1 to 3 to
\nExhibit ‘A’ to the Plaint as also described in the schedule
\nhereto as decreed by the preliminary decree dated
\n17.9.1975; (b) That the Court Receiver, High Court,
\nBombay appointed as Receiver of the suit property being
\nmore particularly described in paragraphs 1 to 3 of
\nExhibit ‘A’ to the plaint as also more particularly
\ndescribed in the Schedule hereto the order dated
\n21.4.1968 passed by this Hon’ble Court be discharged to
\nthe extent of the entire undivided share and all right, title
\nand interest of the Defendant No.1 in or to the suit
\nproperty as aforesaid as decreed by the preliminary
\ndecree dated 17.9.1975; (c ) That this Hon’ble Court be
\npleased to place the exceptions dated 21.7.1979 filed by
\nthe defendant No.1 to the report of the Commissioner for
\ntaking accounts dated 29.6.79, on board for hearing; (d)
\nfor costs of this Notice of Motion”.\n<\/p>\n
\tThe Notice of Motion taken out by the plaintiff in Suit No.2493 of
\n1988 is as follows :-\n<\/p>\n
“(a) that this Hon’ble Court be pleased, pending the
\nhearing and final disposal of this suit to temporarily
\nrestrain the defendants, their heirs, nominees, servants
\nand agents from in any manner acting upon or under or
\npursuant to or in furtherance of the agreement for sale
\n(Exhibit ‘H’ to the Plaint).  (b) that pending the hearing
\nand final disposal of this suit, this Hon’ble Court be
\npleased to stay the operation of the consent decree dated
\n28.2.1980 (Exhibit ‘C’ to the Plaint) and the consent
\ndecree dated 13th August, 1985 (Exhibit ‘D’ to the
\nPlaint).  (c ) that defendant No.19 appointed as Court
\nReceiver in Suit No.618 of 1967 be appointed Receiver
\nof the 99\/1728 undivided share of the Plaintiff
\nabovenamed in the property more particularly described
\nin the schedule Exhibit “B” annexed to the Plaint.  (d) for
\ncosts of this Notice of Motion”.\n<\/p>\n
It would thus appear that in the Notices of Motion, certain interim
\nreliefs were asked for, completely giving a go by to the consent decree
\nearlier passed in Suit No.618 of 1967.  On the other hand, the plaintiff in
\nSuit No.618 of 1967 took out Chamber Summons, in effect praying for
\nexecution of the decree.\n<\/p>\n
We shall first deal with Notice of Motion No.2141 of 1988 in Suit
\nNo.618 of 1967.  Before the trial court, it was argued on behalf of the
\ndefendant No.1 in support of the Notice of Motion taken out by him that the
\nplaintiff had committed breach of the agreement for sale as also the terms of
\nthe consent decree, inasmuch as after depositing an amount representing
\n10% of the sale price, he failed to deposit the balance 90% amounting to
\nRs.27,000,00\/- within the stipulated time or the extended time granted by the
\nCourt.  Thus, the agreement stood terminated and the decree stood revoked.
\nThe parties, therefore, stood relegated to the position they occupied before
\nthe consent decree was passed.  On the other hand, the plaintiff contended
\nthat there was no default committed by him in depositing 90% of the
\npurchase price as alleged.  The agreement for sale executed on August 14,
\n1987 or on March 22, 1988 provided for payment of 90% of the purchase
\nprice only at the time of completion of sale.  If there was delay, it was on
\naccount of the conduct of the defendants who avoided to sign the agreement
\nand raised frivolous objections at every stage.  In fact, they were unwilling
\nto complete the sale. Reliance was placed on Clause 3 of the agreement
\nwhich provided that the balance purchase price was to be paid by the
\npurchasers to the Vendor at the time of completion of sale.  The trial
\ncourtexhaustively considered the material on record and came to conclusion
\nthat the defendants were themselves guilty of delaying execution of the
\nagreement of sale while the plaintiff was always ready and willing to make
\nthe payment for which he had made necessary arrangements.  It, further,
\nnoticed that some delay was occasioned on account of the Income Tax
\nauthorities insisting on the completion of formalities required for issuance of
\na No Objection Certificate.  This clearance had necessarily to be obtained
\nfrom the Income  Tax authorities, but frivolous objections were raised by
\nthe defendants as well as the plaintiff in Suit No.2493 of 1988, who not only
\nrefused to sign the agreement but also the requisite forms required by the
\nconcerned department.  The Trial Judge therefore, held that there was an
\nattempt on the part of the defendants to avoid execution of the sale deed in
\nterms of the consent decree.  The payment of the balance amount was to be
\nmade simultaneously with the completion of the sale, which could not take
\nplace in view of the delaying tactics adopted by the defendants.  Having
\nnoticed the material on record, the trial court dismissed the Notice of Motion
\ntaken out by defendant No.1 in suit No.618 of 1967.\n<\/p>\n
The Division Bench which heard the appeals also considered the
\nmaterial on record and agreed with the finding of the trial court on this issue.
\nIt concluded :\n<\/p>\n
“The delay in completing the sale is because of the
\ndelaying tactics adopted by the judgment  debtor and
\nbecause of intervention of the statutory provisions which
\nthe parties had never contemplated.  The decree passed
\nby the Court cannot be defeated by factors which were
\nbeyond control of the decree  holder”.\n<\/p>\n
\tWe have earlier noticed the facts of the case and the proceedings
\ntaken by the parties in the two suits.  We have also noticed  the proceedings
\ntaken by the parties. The facts noticed by us, are themselves sufficient to
\nconfirm the finding recorded by the High Court.  The defendants, as it
\nappears from the material on record, acquired an obstructive attitude.  They
\ndid not permit the sale to be completed.  Some of them refused to sign the
\nagreement which compelled the plaintiff to move the Court for a direction to
\nthe Prothonotary and Senior Master to execute the agreement on behalf of
\nthe non signing defendants.  Frivolous objections were taken by them when
\nit was discovered that a clearance had to be taken from the Income tax
\nAuthorities to execute the sale deed, since the value of the property involved
\nwas more than Rs.10,000,00\/-.  There was refusal even to sign the requisite
\nforms necessary for obtaining the no objection certificate.  Apart from lack
\nof co-operation in doing what they were required to do, they also resorted to
\nmultifarious proceedings which further withheld the completion of the sale.
\nThe courts below have concurrently found that the plaintiff was always
\nready and willing to deposit the balance amount representing 90% of the
\npurchase price but on account of the practice adopted by some of the
\ndefendants he could not do so.  The agreement as well as the consent decree
\nprovided for deposit of the balance amount on completion of the sale,
\nmeaning thereby, that simultaneously with the completion of the sale, and
\nthe formalities relating to execution of sale deed, the plaintiff was required
\nto deposit the balance amount.  We are informed that the balance was
\ndeposited on July 20, 1994 soon after the judgment of the Division Bench
\nimpugned in these appeals.\n<\/p>\n
Having considered all aspects of the matter, we find no reason to
\ninterfere with the concurrent findings recorded by the trial court as well as
\nthe Appellate Bench of the High Court.  We, therefore, find no merit in Civil
\nAppeal No.368 of 1994.\n<\/p>\n
We shall not take up for consideration Notice of Motion No.2392 of
\n1989 filed by plaintiff Milind in Suit No. 2493 of 1988.  We may
\nrecapitulate some of the facts.  The preliminary decree was passed on
\nSeptember 17, 1975 and the final decree followed on February 28, 1980.
\nThe decree was varied to some extent on August 13, 1985, though as found
\nby the courts below the variation was only with regard to the mode of sale.
\nIn the earlier consent decree only the defendants were required to bring
\npurchasers for the plots in question but under the modified decree as passed
\non August 13, 1985 even the plaintiff was permitted to bring purchasers
\napart from the defendants.   The rest of the terms and conditions were
\nsubstantially the same with extension of time granted to complete the
\nformalities.\n<\/p>\n
\tThe plaintiff Milind attained majority on November 17, 1981.  He
\nfiled a Suit on August 16, 1988 i.e. roughly 7 years after attaining majority.
\nWhile considering the prayer for grant of interim relief, the Court considered
\nthe limitation aspect of the matter, not with a view to pronounce a final
\nverdict on that question, but with a view to considering the justification for
\npassing an interim order as prayed for in the Notice of Motion.  The plea of
\nthe plaintiff was that he did not know about the pendency of the suit and the
\npassing of the decree in the suit namely, Suit No.618 of 1967.  For the first
\ntime, he came to know about the passing of the decree some time in August
\n1987, when he noticed that the defendants were having frequent meetings.
\nThe trial court found that this assertion of the plaintiff was belied by the
\nmaterial on record.  It has recorded in paragraph 6 of its judgment, several
\nreasons why it was not possible to believe that the plaintiff Milind, who was
\nthe son of Moreshwar, defendant No.1 in the earlier suit, was unaware of the
\npassing of the consent decree so that he could not file a suit within the period
\nof limitation prescribed by law, namely three years.   In this connection, the
\nlearned Judge found that on September 30, 1985 the plaintiff was present
\nbefore Markand Gandhi, Attorney, when the offers received were
\nconsidered.  He was also present at the meeting before the Court Receiver on
\nDecember 19, 1986.  He also attended the office of the Prothtonotary and
\nSenior Master on November 24, 1986, on the request of his father.  The
\nplaintiff had himself affirmed affidavits in the suit proceedings averring that
\nhe was fully conversant with the facts of the case.  He was also present in
\nCourt on 15th July, 1987 and 24th July, 1987.  All these facts proved that the
\ncase pleaded by the plaintiff that he came to know about the passing of the
\ndecree sometime in August, 1987 was not true.\n<\/p>\n
\tThe Appellate Bench also agreed with the finding recorded by the
\nTrial court.   In particular the appellate court noticed the letter of March 26,
\n1984 addressed by the plaintiff Milind to the Court Receiver informing the
\nCourt Receiver that his father defendant No.1, in the earlier suit, had gone
\nout of town and that one Arvind, occupant of a room in the structure was
\nindulging in destruction of property and that the Court Receiver should take
\nsteps to carry out repair works and prevent further damage.  It also noticed
\nthe minutes recorded by the Court Receiver on December 13, 1986 of the
\nmeeting held in his office in which the plaintiff was present on behalf of his
\nfather.  It also noticed the affidavit filed by the plaintiff, on behalf of his
\nfather, affirmed on March 31, 1987 reiterating and confirming the statements
\nmade by his father in the affidavit of the same date.  Thus the Court held that
\nright from the year 1984 onwards Milind was fully aware of the decree and,
\ntherefore, it was futile to claim that he became aware of the consent decree
\nonly in the first week of August, 1987.\n<\/p>\n
Similarly, the trial court considered the objection raised by the
\nplaintiff on the ground of non-compliance of Order 23 Rule 3-B of the Code
\nof Civil Procedure.  Two submissions were advanced on behalf of the
\nplaintiff, namely, that the Court had not granted leave to enter into a
\ncompromise in the suit which was of a representative character and
\nsecondly, that no notice was issued to the plaintiff in the said proceeding.
\nThe trial court negatived the contention holding that the suit had been filed
\nfor partition of the joint family properties and, therefore, it was not
\nnecessary to join the minor sons, who were represented by their respective
\nKartas.   The father of the plaintiff represented him in the suit.  The consent
\ndecree read as a whole made it clear that the Court which passed the decree
\nwas conscious of the fact that the suit was for partition of the joint family
\nproperties.   The Court also recorded provided that the said sale was for the
\nbenefit of minors interested in the property and that the respective fathers of
\nsuch minors would stand appointed as guardians with power to execute
\nconveyance and to pass valid receipts, and that the share coming to the
\nminors would be deposited with the Accounts Officer of the Court.  There
\nwas, therefore, substantial compliance of Order 23 Rule 3-B of the Code of
\nCivil Procedure since the Court had taken care of the interest of these minors
\nwho were not party to the suit.  It was, therefore, apparent that the Court had
\ngranted leave under the said Rule.  Rejecting the contention that the consent
\norder of August 13, 1985 was a fresh decree passed after the plaintiff had
\nattained majority without hearing him, the trial court held that the decree
\npassed on February 28, 1980 was, in fact, confirmed by the subsequent
\ndecree and only the mode of sale was varied by the consent order of  August
\n13, 1985.  In any event, Order 23 Rule 3-B was not applicable to execution
\nproceedings and the variation of Order dated August 13, 1985 was, merely,
\nin execution of consent decree dated February 28, 1980.  This aspect of the
\nmatter, according to the trial court, stood concluded by the order of Suresh,
\nJ, in the review petition filed by the plaintiff which was not appealed against.
\nThe trial Judge therefore, found no merit in the Notice of Motion taken out
\nby the plaintiff.\n<\/p>\n
\tThe Appellate Court also considered the material on record and came
\nto the same conclusion.  It rejected the submission that the consent decree
\nwas void as the leave of the Court was not expressly recorded in the
\nproceedings and that such leave could not have been granted without notice
\nto the plaintiff and his brothers who were interested in the properties in suit.
\nIt held that it was not correct to say that the leave of the Court was not
\nexpressly recorded in the proceedings.  The fact that the consent terms were
\ntendered in Court and the Court proceeded to pass decree in accordance with
\nthe consent terms was sufficient to hold that the leave of the Court was
\nexpressly recorded.  It was not necessary to use particular words to record
\nthe leave of the Court, and the fact that the Court proceeded to pass the
\nconsent decree was sufficient indication that the Court had granted leave.  It
\nfurther held that issuance of notice as contemplated in sub-rule 3-B of Order
\n23 of Code of Civil Procedure was not mandatory, and in case the Court
\nfound that all parties interested in the suit had joined in the consent terms
\nand were fully conscious of consent terms, then issuance of notice was an
\nempty formality.  On the facts and circumstances of the case, it was held that
\nthe Court was fully satisfied that the two sons of Moreshwar, namely, the
\nplaintiff and his brother were fully conscious of the consent terms.  It also
\nnoted that it was not the case of the plaintiff that by entering into consent
\ndecree his father had affected his interest to his detriment.  The complaint
\nwas only about compliance with the procedure envisaged by Rule 3B of
\nOrder 23 of the Code of Civil Procedure.\n<\/p>\n
\tWe have been taken through the findings recorded by the trial court as
\nwell as by the appellate court.  They have recorded concurrent findings
\nwhile rejecting the Notice of Motion praying for interim relief.  It is true that
\nthe findings recorded are tentative and only for the purpose of disposal of the
\nNotice of Motion.  The plaintiff’s suit is pending and the merit of his claim
\nwill have to be judged in the Suit on the basis of the evidence on record.
\nHowever, we do not find that any error has been committed by the High
\nCourt in refusing interim relief.  The trial court as well as the appellate
\nbench have exhaustively dealt with the submissions urged before them and
\nthe material on record and applied their mind to the issues raised before
\nthem.  They have concurrently found that there was no justification for
\nissuance of an interim order as prayed for in the Notice of Motion.  They
\nhave not taken into account any extraneous matter, nor do we find any
\nperversity in the appreciation of the material on record.  The findings of the
\nCourts below are concurrent and based on the material on record.  We have
\nfound nothing which can justify our taking a different view.  We, therefore,
\nfind no justification for interfering with the order passed by the High Court.\n<\/p>\n
\tIn the result, we find no merit in the appeals and they are accordingly,
\ndismissed but without any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Milind Moreshwar Kowley vs Manohar Bhaskar Kowley (Dead) By … on 12 May, 2006 Author: B Singh Bench: B.P. Singh, S.B. Sinha CASE NO.: Appeal (civil) 4730 of 1996 PETITIONER: Milind Moreshwar Kowley RESPONDENT: Manohar Bhaskar Kowley (Dead) by L.Rs.and others DATE OF JUDGMENT: 12\/05\/2006 BENCH: B.P. SINGH & S.B. SINHA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-256362","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMilind Moreshwar Kowley vs Manohar Bhaskar Kowley (Dead) By ... on 12 May, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/milind-moreshwar-kowley-vs-manohar-bhaskar-kowley-dead-by-on-12-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Milind Moreshwar Kowley vs Manohar Bhaskar Kowley (Dead) By ... on 12 May, 2006 - 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