Dilip Shamkar Mulay v. Pradip Shamkar Mulay

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IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10233 OF 2014 Dilip Shankar Mulay ...

Petitioner Vs.

Pradip Shankar Mulay and others ...

Respondents Mr.Dilip Shankar Mulay, Petitioner in-person. Mr. Sandesh Deshpande, Advocate for Respondent No.1. CORAM :

R. G. KETKAR, J.

DATE : 10th JUNE, 2015 P.C. :

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Heard Mr.Dilip Shankar Mulay, petitioner in-person and Mr. Sandesh Deshpande, learned Counsel for respondent No.1 at length.

2.

By this petition under Article 227 of the Constitution of India, original plaintiff has challenged the order dated 17/08/2013 passed by the learned Civil Judge, Senior Division, Thane below Exhibit 599 in Regular Civil Suit No. 1407 of 2012. By that order, the learned trial Judge rejected the application at Exhibit 599 filed by the petitioner.

3.

In support of this petition, Mr.Mulay strenuously contended that by the impugned order, the learned trial Judge has also rejected the application dated 03/01/2009 at Exhibit 364 made by him under Order 40 of the Code of Civil Procedure, 1908 for 1/3

appointment of the Court Receiver. He invited my attention to the prayers made in application dated 11/06/2013 at Exhibit 599 and in particular prayer clause (B) thereof and submitted that by rejecting that prayer, the learned trial Judge also rejected the application made at Exhibit 364 for appointment of the Court Receiver. 4.

It is not possible to accept this submission. The petitioner had filed application at Exhibit 599 praying for following reliefs.

"A. To prevent failure of justice irreparable loss damage to the merits of partition suit. The cross examination of plaintiff be stayed which is likely to start on 18.06.2013. B. R.C.S 1407 of 2012 be kept on daily board to decide 15 pending applications of plaintiff till 30th June 2013 as the trial court is still having July 2013 to September 2013 - 90 days to decide the suit.

C. Cross of plaintiff be started after deciding pending application of plaintiff.

D. necessary order be passed on this application on 14.06.2013 or 15.06.2013 in the interest of justice as the matter is urgent."

5.

The learned trial Judge rejected that application by the impugned order on 17/08/2013. In paragraph 3, the learned trial Judge observed as under :

".....Moreover, the applications filed by the plaintiff vide Exhs.92, 364, 541, 395, 159, 304, 339, 311, 387, 394, 379, 519, 525, 543, 551, 552, 553, 566, 580, 588, 477 & 579 etc. are concerning or would not make any hurdle in deciding the matter in issue...." 6.

Perusal of above portion of paragraph 3 shows that the learned trial Judge did not dispose of application at Exhibit 364 among other applications. In view thereof, petition filed by the 2/3

petitioner on the premise that application at Exhibit 364 is rejected by the impugned order on 17/08/2013 itself is not well founded. Hence, the petition is rejected. While disposing of Writ Petition No. 337 of 2015 against the impugned order, I have directed the learned trial Judge to dispose of the pending applications along with the suit. Since application at Exhibit 364 is also pending, the learned trial Judge will dispose of the same while deciding the suit. Subject to this, petition fails and the same is dismissed. Order accordingly. (R. G. KETKAR, J.) 3/3