2015 Supreme(SC) 937

SUPREME COURT OF INDIA
RANJAN GOGOI, R.K. AGRAWAL, JJ.
Avenue Supermarts Pvt. Ltd. – Appellants
Versus
Mrs. Nischint Bhalla & Ors. – Respondents
Decided On : 8-10-2015

IMPORTANT POINT
When vested right is created in third party by virtue of an order of the Court and that order is appealed against, the plaint or suit or notice of motion in which the order was passed cannot be withdrawn at the appellate stage.

Headnote:Code of Civil Procedure, 1908 – Order XXI – Notice of motion taken out in a suit for administration of estate of the deceased for administration of estate of deceased – Initially Single Judge of High Court restraining defendants from transferring the properties in question or creating third party rights – Parties compromising – Compromise decree passed – Initial order modified and Defendant Nos. 1, 4 and 6 were permitted to take all necessary steps to sell the said property – In view of delay in execution of agreement, Defendant Nos. 4A, 4B and 5 taking out a notice of motion for completion and confirmation of the sale process – Single Judge allowed the Notice of Motion, confirmed the sale process and directed execution of the documents in favour of the appellant – Thus a vested right was created in favour of the appellant – Original Defendant Nos. 2, 6 and 7 challenging the order in LPA – At that stage Defendant Nos. 4A, 4B and 5 submitting that they are withdrawing the Notice of Motion – Division Bench allowing the withdrawal holding that thereafter the Notice of Motion as also the order passed therein did not survive and hence the LPA became infructuous – Not permissible – Vested right created in favour of appellant could not be taken away by withdrawing the notice of motion – Division Bench ought to have decided the appeal on merits – Impugned order not sustainable. (Para 17)

       (1999) 4 SCC 89; (2009) 6 SCC 194; (2008) 12 SCC 582 – Relied upon

       Facts of the case:

       One Smt Durga Devi Hitkari was owner of various properties at Mumbai. She died in the year 1991. It appears that there was some dispute between her heirs regarding the estate left by her. The plaintiffs therein filed the present suit for administration of estate of the deceased. The Notice of Motion being No. 3441 of 1995 in the suit was taken by the plaintiffs therein praying for appointment of a receiver on the properties left by Late Smt Durga Devi and for temporary injunction restraining the defendants therein from disposing or selling or creating any third party rights or interest in the property.

       A single Judge of the High Court disposed of the Notice of Motion by restraining the defendants, their agents and servants from creating any third party interest in or encumbering or selling or transferring or alienating in any manner whatsoever the immovable properties along with certain other directions. The said Award was made rule of the court by the High Court and a decree in terms of the said Award was passed in Arbitration Petition No. 148 of 1997.

       Defendants therein moved Supreme Court. Learned counsel for the parties filed consent terms of compromise duly signed by the parties. The special leave petition got disposed of in terms of the consent terms. The said order was passed without prejudice to the parties to move the High Court of Bombay for probate proceedings. The High Court disposed of the Notice of Motion filed in Suit No. 3706 of 1995 in terms of the minutes of the order whereby the earlier order of the single Judge dated 04.08.1998 restraining the defendants from transferring immovable property was modified and Defendant Nos. 1, 4 and 6 were permitted to take all necessary steps to sell the said property on the terms and conditions mentioned in the minutes.

       Bids were invited for the sale of the property at Chembur and the appellant herein gave bid of Rs. 20,15,00,000/-which was found to be highest and accepted by the parties also.

       As there was delay in execution of the agreement, Defendant Nos. 4A, 4B and 5 made an application by way of Notice of Motion being No. 21 of 2006 to the court for completion and confirmation of the sale process. The single Judge of the High Court confirmed the sale process and directed execution of the documents in favour of the appellant.

       The original Defendant Nos. 2, 6 and 7 challenged the order dated 10.02.2009 by way of Letters Patent Appeal. The original Defendant Nos. 4A, 4B and 5 did not challenge the order dated 10.02.2009 and made an oral application for withdrawal of the notice of motion filed by them. The Division Bench of the High Court allowed the withdrawal of the Motion while holding that the order of the single Judge dated 10.02.2009 does not survive for consideration rendering the appeal infructuous.

       Finding of the Court:

       Division Bench could not allow withdrawal of the Notice of motion.

       Result: Appeal allowed.