KIRAN NAROTTAMDAS MERCHANT Vs. RAVINDRA NAROTTAM MERCHANT

JUDGEMENT

(1.) Admit. By consent of Counsel and at their request, taken up for hearing and final disposal. The appeal arises from an order of a Learned single Judge, dated 23 November, 2012 on a motion that was taken out in a Trust Petition. The Appellant and the First Respondent are brothers. The Second Respondent is their mother, while the Third, Fourth and Fifth Respondents are their sisters. The Trust Petition has been instituted by the First Respondent inter alia for the distribution of the Trust properties in equal proportion between the Appellant and the First Respondent, who are the two beneficiaries named in the Deed of Trust.

(2.) The Petition came up for hearing before a Learned single Judge. On 5 August, 2005, Mr. Justice S.U. Kamdar dictated, in the presence of the parties and their Counsel, terms of settlement. A Chamber Summons had been moved before the Learned single Judge by the mother and the three sisters for impleadment. On 5 August, 2005, the Learned single Judge, by consent of parties allowed the impleadment of the three sisters and directed the First Respondent to amend the suit which was to be heard together with the Trust Petition. In order to bring clarity to the controversy in the appeal, it would be necessary for the Court to make a reference to the following facts which have been admitted during the course of the hearing:

(3.) On 8 March, 2006, on a motion for recalling, the Learned Trial Judge was moved for stay of 'the order' dated 5 August, 2005. The Learned Judge declined to grant an ad-interim stay on the ground that on 5 August, 2005, a consent order had been passed. On 7 April, 2006, the Learned Judge directed each of the Counsel who had appeared in the matter to file their affidavits about what transpired in Court on 5 August, 2005 and on the previous date, namely, 3 August, 2005. On 21 April, 2006, the Learned Judge held that the First Respondent "has signed the said consent order as consent order between the parties" and issued a notice to show cause as to why action should not be initiated under the Contempt of Courts Act. The orders dated 8 March, 2006, 7 April, 2006 and 21 April, 2006 were passed by the Learned Judge in a motion which was taken out by the First Respondent for recalling the order dated 5 August, 2005. The motion proceeded on the footing that there was an order of the Court dated 5 August, 2005. The motion was dismissed by Smt. R.S. Dalvi, J. on 23 January, 2007 against which the First Respondent filed an appeal. In the meantime, S.U. Kamdar, J. demitted office.