JUDGMENT - LODHA R.M., J.: - Twin issues arise in this appeal. The first issue is whether Order 39, Rule 11(1) of the Code of Civil Procedure (Bombay Amendment) introduced in Maharashtra by Notification dated 5th September, 1983 is mandatory or directory. The other issue is if the said provision is held to be directory, whether the learned Single Judge committed any error in exercise of discretion in declining to strike off the defence of the defendant.

2. The aforesaid issues arise in the circumstances which we may briefly indicate. The appellant is the plaintiff and the respondent is the defendant in Suit No. 542/1996. The parties are real brothers. The plaintiff claims to be the owner of the subject flat and has prayed for the possession of that flat from the defendant. In the Notice of Motion taken out by the plaintiff being Notice of Motion No. 2440/1996, the Court Receiver was appointed vide order dated 5th March, 1998 by consent of the parties in respect of the subject flat. By the said order the Court Receiver was directed to take only formal possession and appoint the defendant as its agent for the royalty to be fixed, but without security. The consent order dated 5th March

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