RASILABEN KANTILAL KANSARA Vs. AMRATLAL BABABHAI KOCHA

JUDGEMENT

(1.) THIS Notice of Motion is taken out by the person, who is not a party to the suit, namely Lakozy Motors Pvt. Ltd. It appears that a suit for dissolution of the partnership was filed. By order dated 6th May, 1985, the Court Receiver was appointed as interim Receiver. By order dated 12th October, 1987 the Appellate Court appointed Receiver as the Receiver of the entire premises. In a portion of the premises in relation to which the Receiver was appointed, the Applicants were the tenant of approximately 1871 sq. ft. of area on the ground floor including a loft in the suit premises. At the time when the Receiver took possession the Applicants were running a motor cycle repairing shop in the premises. It appears that the Applicants wrote a letter to the Receiver for carrying out certain repairs in the premises. The Receiver directed them not to carry out any repairs. The representative of the Receiver visited the premises and found that the Applicants were not in possession of the premises, but one Ketan Sanghvi, who claimed to be the editor of "Samantar-Evening" was present. Therefore, the Court Receiver submitted report to the Court. On the Receiver submitting the report to the Court, the Court appointed the Court Commissioner by Order dated 27th April, 1995 to visit the premises. On the basis of the report of the Receiver and the report of the Commissioner the Court by order dated 27th April, 1995 directed the Receiver to seal the premises after removing the goods of the applicants or anybody else found occupying the premises.

(2.) THE Applicants filed an appeal against that order. The Appellate Court did not disturb that order, however, allowed the applicants to raise all the contentions before the Single Judge when the report of the Receiver would be taken up for consideration by the Court. Accordingly the report of the Receiver was considered by this Court and final orders were passed on 15th December, 1995 after hearing the Applicants. The Court by order dated 15th December, 1995 confirmed the earlier order dated 27th April, 1995. The Court in that order found that the applicants handed over possession after appointment of the Receiver to the third party. The Court also relied on the judgment of this Court in the case of Anthony C. Leo Vs. Nandlal Bal Krishnan, to hold that the Court can make an order for removal of the tenant on the premises where the Court Receiver has been appointed.

(3.) THE learned Counsel appearing for the Applicants submitted before me that this is not an application for review of the order dated 15th December, 1995. He also submitted that the judgment of the court, which was relied on while making the order dated 15th December, 1995 has been subsequently set aside by the Supreme Court cannot be the ground for review. However, the Applicants' application is an application filed under Sub-rule 2 of Rule 1 of Order 40 of the Civil Procedure Code. The learned Counsel submits that sub-rule 2 of Rule 1 of Order 40 of the Civil Procedure Code contains a prohibition on the powers of the Court to remove from possession any person to whom any party to the suit does not have a present right to remove. According to the learned counsel, the Applicants can make an application under sub-rule 2 of Rule 1 of Order 40 of CPC for revocation of the order passed by the Court directing such removal.