MODI RUBBER LIMITEDversusMAULIK GIRISH DAMANIA AND ORS.

2026:BHC-AS:40250

                                                               15-CRA-380-2018.docx


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION
                      CIVIL REVISION APPLICATION NO. 380 OF 2018
   Swapnil

               Modi Rubber Limited.                           …Applicant
                    Vs.
               Maulik Girish Damania and Ors.           …Respondents


               Mr. Harsh Moorjani a/w. Ms. Diya Chordia i/b. Mr. Sujit Lahoti
               and Associates for the applicant.
               Ms. Ranjana Parikh for respondent nos. 1 to 3.

                                      CORAM : GAURI GODSE, J.

                                      DATE :        30th SEPTEMBER 2026

               ORDER :


               1.    This civil revision application is filed by an occupant of

               the suit premises, challenging the order refusing leave to file

               an appeal against the eviction decree passed against the

               lessee. Respondent nos. 1 to 3 are the original owners of the

               land who had executed the lease agreement in favour of the

               predecessor of respondent nos. 4, 5 and 6. The suit for

               possession filed on the ground of termination of the lease

               was decreed on 25th March 2013. The applicant filed an

               application on 5th July 2013 seeking leave to file an appeal.

               By the order impugned in this civil revision, the said leave


                                             1/15
                                               15-CRA-380-2018.docx


application is rejected.


2.    Learned counsel for the applicant submits that the

original lessee executed an agreement dated 6 th May 1982 to

transfer the right, title, and interest in the suit property in

favour of the applicant. The applicant has filed Suit No. 2144

of 1989 seeking specific performance of the said agreement.

The applicant is in possession of the land and the structure

thereon, except for the third floor that is occupied by one

Satishkumar Choksi. The applicant, Satishkumar Choksi, and

Bhattad Commercial Corporation claimed rights in the suit

property through the original lessee.


3.    Learned counsel for the applicant submits that

Satishkumar Choksi has filed a separate Suit No. 171 of

1982 in which the present application is arrayed as

defendant no.4. By order dated 25 th October 1982 passed in

Choksi’s suit, the Court Receiver was appointed, and the

applicant was put in possession as an agent of the Court

Receiver in respect of the suit property except the third floor

occupied by Choksi. By an order dated 16 th August 2013 in

the suit filed by Choksi, the Court Receiver was directed to

engage an advocate to challenge the possession decree


                             2/15
                                               15-CRA-380-2018.docx


passed in favour of the landlord. Despite the said order, the

Court Receiver failed to take any steps to defend the

execution of the decree or file an appeal. By order dated 21 st

August 2013, the Court clarified that the directions issued to

the Court Receiver to defend the execution of the decree

would also apply to the present applicant, who is defendant

no.4 in Choksi’s suit.


4.    Learned counsel for the applicant, therefore, submits

that despite the directions issued to the Court Receiver, the

applicant’s rights were not protected by taking appropriate

steps. Once the Court Receiver was appointed, the suit

property became custodia legis; therefore, it was the Court

Receiver's duty to protect the applicant’s rights. He thus

submits that in the absence of any appropriate steps taken

by the Court Receiver, the applicant’s rights have been

prejudiced. Hence, the applicant is entitled to file an appeal

to challenge the decree of possession passed in the suit filed

by the landlord.


5.    Learned counsel for the applicant refers to the reasons

recorded in the impugned order and submits that the

appellate court has dealt with the merits of the applicant’s


                             3/15
                                              15-CRA-380-2018.docx


rights based on the agreement in his favour and recorded

findings beyond the scope of the application for leave to file

an appeal. He submits that the orders passed in Choksi’s suit

and the directions issued to the Court Receiver are not

correctly appreciated while hearing the application for leave.

He therefore submits that the applicant, who is in possession

of the suit premises except the third floor, which is in

Choksi’s possession, would be entitled to protect his rights.

He, therefore, submits that the applicant, who claims through

the lessee, would be entitled to challenge the possession

decree against the lessee. He submits that the possession

decree would directly affect the applicant, as he is occupying

the premises, and thus he is entitled to file an appeal. Since

the applicant is not a party to the proceedings, he would be

entitled to leave to file an appeal.


6.    Learned counsel for the applicant, to support his

submissions, relied upon the decision of the Apex Court in H.

Anjana Appa and this Court’s decision in H. Anjanappa Vs

A. Prabhakar1 and this Court’s decision in Vinay Ambadas

Kaikini Vs Court Receiver, High Court Bombay 2. He relied

on the legal principles summarised in the Apex Court’s
1 2025 SCC OnLine SC 183
2 2010 SCC OnLine Bom 1340

                               4/15
                                               15-CRA-380-2018.docx


decisions to support his submissions that if a person is

prejudiced and his rights are affected by the judgment, the

party would be entitled to file an appeal. He therefore

submits that, since the applicant falls within the expression

“person aggrieved”, it is entitled to leave to file an appeal.

Learned counsel for the applicant relies on this Court's

decision to support his submission that the party should not

suffer because of the mistakes committed by the Court

Receiver. In the present case, despite directions issued to

the Court Receiver, no steps were taken to protect the

applicant’s interest. Learned counsel for the applicant

therefore submits that the applicant is entitled to file an

appeal to challenge the possession decree, as the

applicant’s rights are directly affected.


7.    Learned counsel for respondents nos. 1 to 3

(“respondents”) submits that the applicant and the third party,

i.e., Satishkumar Choksi, have made every effort to delay the

execution. When this court passed an order on 16 th August

2013 in Choksi’s suit, the present applicant had already filed

an application for leave to file an appeal. However, the

applicant suppressed this fact from this Court. Based on the



                               5/15
                                                15-CRA-380-2018.docx


submissions that no appeal had been filed against the

possession decree, this court had directed the Court

Receiver to take appropriate steps to defend the execution.

She submits that despite filing an application for leave to file

an appeal, the applicant secured an order of liberty to remain

personally present or through an advocate.


8.    Learned counsel for the respondents relied on the

bailiff’s report, which forms part of the present proceedings.

She submits that the applicant had already obstructed the

possession warrant on 12th August 2013. However, the

present applicant suppressed all these facts in the

application filed in Choksi’s suit when the order dated 16 th

August 2013 was passed. She submits that in view of the

obstruction, the respondents have applied for removal of the

obstruction, and proceedings are still pending.


9.    Learned counsel for the respondents submits that the

present applicant is making all efforts to delay execution.

Except for filing the suit, the applicant has never proceeded

with the suit with due diligence and has made every effort to

delay execution of the possession decree. She submits that,

in view of the conduct of the other third parties claiming


                              6/15
                                                15-CRA-380-2018.docx


through the lessee and the present applicant, this court, in its

order dated 7th June 2011 in Choksi’s suit, observed that the

applicant and the third parties have taken out all proceedings

only to delay execution.


10.   Learned counsel for the respondents submits that the

application to implead the present applicant as the necessary

party in the suit was dismissed and the revision filed before

the Division Bench of the Small Causes Court was also

dismissed. The applicant took no steps to challenge the

order refusing to implead it as a necessary party. Hence, at

this stage on the same grounds, the applicant would be

entitled to seek leave to file an appeal, which would further

delay the execution of the decree in favour of the original

owners. She, therefore, submits that the appeal bench of the

Small Causes Court has rightly refused to grant leave to file

appeal.


11.   I have carefully perused the papers of the civil revision

application. The application for leave to file an appeal is

based on the specific pleadings that the applicant is the

owner of the suit property. The applicant claims ownership

based on an unregistered agreement dated 6 th May 1982.


                              7/15
                                                     15-CRA-380-2018.docx


Although the suit for specific performance was filed in 1989,

no interim orders protecting the applicant’s rights have been

passed in the said suit. So far as the orders passed in

Choksi’s suit are concerned, the present applicant is an

added party defendant. The third party, i.e. Choksi, who has

filed the suit, seeks rights in respect of the entire suit

property through the lessee. Thus, the present applicant,

Satishkumar Choksi and Bhattad Commercial Corporation,

claimed the right, title, and interest in the entire suit property

based on the alleged independent agreements executed by

the lessee. By order dated 25 th October 1982, the applicant

was directed to be put in possession as an agent of the Court

Receiver, as the applicant was occupying the ground plus

mezzanine and the upper floor, except the third floor

occupied by Choksi, in whose suit the Court Receiver has

appointed.


12.   While appointing the applicant as an agent of the Court

Receiver, necessary directions are issued in paragraph 49 of

the order dated 25th October 1982, which reads as under :


“49. In view of this, it would be necessary to protect the rights of
the parties as far as possible until the final disposal of the suit and

                                 8/15
                                                     15-CRA-380-2018.docx


this can only be done by appointing Court Receiver as receiver of
the suit premises (i.e. other than the third floor). However, as stated
earlier, it appears at least prima facie that defendants No.4 are in
possession of the rest of the building other than third floor. Hence,
the Court Receiver is appointed receiver of the suit premises other
than the 3rd Floor as also the air conditioning plant. The Court
Receiver is directed to hand over the said premises (i.e. other than
the 3rd floor) to defendants No.4 as his agents, without security,
and/or payment of any royalty, but subject to defendants No.4
giving an undertaking that they will not put up or carry out any
structural alterations of a permanent character in the premises or
any part thereof and subject to their paying all the rates, taxes and
outgoings in respect of the suit property, and subject to their
undertaking to keep and maintain the air-conditioning plant in a
working order and on such other terms and conditions as the Court
Receiver may think fit.”

13.   A perusal of the said directions clearly shows that the

applicant was appointed as an agent of the Court Receiver

only on the ground that he was occupying the suit premises.

Hence, the applicant was appointed as an agent subject to

an undertaking. Hence, the order appointing the Court

Receiver and the applicant to be put in possession as an

agent of the Court Receiver was limited because the


                                 9/15
                                                15-CRA-380-2018.docx


applicant was in possession and Choksi claimed the right,

title, and interest in the suit property. Thus, if Choksi

succeeds or fails in his suit, the applicant, as defendant no.

4, would not benefit from any of the orders in the suit.


14.   So far as the applicant’s suit is concerned, no orders

are passed to protect any of his rights. The second order

relied upon by the learned counsel for the applicant, passed

in Choksi’s suit on 16th August 2013, directs the learned

Court Receiver to take all possible steps to defend the

execution of the decree, including filing an appeal or other

proceeding by engaging an advocate. By the said order, the

plaintiff, i.e. Choksi, was appointed as an agent of the Court

Receiver. While issuing the operative directions this court

directed that the Court Receiver shall remain present before

the Small Causes Court on 20th August 2013 and convey the

order to the Small Causes Court to the effect that the plaintiff

in that suit, i.e. Choksi, has been appointed as an agent of

the Court Receiver for the purpose of defending the suit and

to take all necessary steps for filing appropriate proceedings.

By the said order, the present applicant, i.e. defendant no.4

therein, was also permitted to appear in person or through



                              10/15
                                                 15-CRA-380-2018.docx


their advocate.


15.   By another order dated 20 th August 2013, further

clarification was issued that in view of the order appointing

Choksi as an agent of the Court Receiver for the purpose of

defending the execution proceedings as well as for filing an

appeal, the Court Receiver was further directed to make

appropriate application to enable Choksi to take appropriate

steps to seek stay of the decree passed by the Small Causes

Court. Further clarifications were issued by order dated 21 st

August 2013 permitting the plaintiff, i.e. Choksi, to sign all the

pleadings and Vakalatnama on behalf of the Court Receiver,

with a further clarification that Choksi would furnish the copy

of all such pleadings and Vakalatnama to the office of the

Court Receiver. It was further clarified that the said order

would also apply to defendant no.4, i.e. the present

applicant. Thus, the said directions were issued on the

pretext that the present applicant had not taken any

independent steps to challenge the possession decree.

Hence, the orders passed issuing directions to the Court

Receiver in Choksi’s Suit cannot be accepted as any valid

grounds to consider the application for leave to file appeal.



                              11/15
                                                15-CRA-380-2018.docx


16.   The applicant seeks leave to file appeal on the ground

that the applicant is the owner of the suit property. However,

the applicant’s suit for specific performance based on an

unregistered agreement to transfer the right title interest in

the suit property against the lessee is still pending.

Admittedly, the original defendant, i.e., the lessee, is not the

owner of the suit property. Hence, the agreement relied upon

by the applicant prima facie does not reveal any right, title, or

interest in favour of the applicant based on the said

agreement. A perusal of the agreement nowhere records that

the original owners are a party to it or have consented to it.

The agreement is neither for transferring the lease rights nor

for creating any sublease. In any event, the applicant's rights,

if any, would be decided in his independent suit, which is still

pending.


17.   In the present suit, the applicant’s application to be

impleaded as a necessary party was dismissed. The

impleadment was also prayed for on the same grounds, as

the applicant is in possession under the agreement executed

by the lessee; the suit for specific performance is still

pending. However, in the absence of any prima facie rights in



                              12/15
                                                 15-CRA-380-2018.docx


favour of the applicant, the applicant is not entitled to leave to

file an appeal as a matter of right. In any event, proceedings

for removal of obstruction by the applicant are pending in the

execution proceedings. In the execution proceedings, the

applicant has filed his evidence, and the proceedings for

removal of obstruction are still pending. Hence, the

applicant’s rights, if any, would be adjudicated in the

obstructionist proceedings. If the applicant is able to plead

and prove any right, title, or interest in the suit property,

appropriate reliefs would be granted in the execution

proceedings. Hence, I do not find any reason to grant leave

to file an appeal to challenge the decree for possession

passed against the original lessee.


18.   The Apex Court, in summarising the legal principles for

granting leave to file an appeal, observed that only where the

judgment and decree prejudicially affect a person who is not

a party can he prefer an appeal with the leave of the court. It

is further clarified that an aggrieved person must be one

whose rights are affected by the judgment and decree sought

to be impugned. In the present case, the applicant seeks

interest in the suit property based on an agreement allegedly



                              13/15
                                                15-CRA-380-2018.docx


executed by the lessee in respect of which the suit for

specific performance is still pending. The possessory rights

claimed by the applicant would be adjudicated in the

obstructionist proceedings. The decree for possession is on

the ground of the termination of the lease of the original

lessee through whom the present applicant claims right.

Hence, the applicant does not claim any independent right.

Hence, none of the legal principles settled by the Apex Court

would assist the applicant’s arguments in the present case.

There is no scope for debate on the legal principles settled

by this Court regarding the duty of the Court Receiver.

However, this is not a ground to grant leave to file an appeal.


19.   Nothing is shown on record that the applicant made

any efforts through the Court Receiver’s officer to protect its

rights. The grounds raised by the applicant are inconsistent,

as the applicant has independently taken steps in the

proceedings initiated by Choksi and in the present

proceedings to protect its rights. However, in the substantive

suit filed by the applicant, no steps have been taken seeking

any protection in respect of the applicant’s alleged rights. The

applicant is claiming through the lessee; hence, the applicant



                             14/15
                                                15-CRA-380-2018.docx


would not fall within the expression “person aggrieved” for

granting leave to file an appeal. As observed in the aforesaid

paragraphs, the applicant’s rights, if any, would be

adjudicated on their own merits in the obstructionist

proceedings. Hence, the Small Causes Court's appeal bench

has rightly refused to grant leave. The Appeal Court has

exhaustively considered all the arguments raised by the

applicant. I do not find any jurisdictional or other manifest

error in the reasons recorded in the impugned order

warranting any interference under Section 115 of the Civil

Procedure Code, 1908.


20.   The civil revision application is devoid of any merit.

Hence, the civil revision application is dismissed.


21.   It is clarified that since the execution proceedings have

been delayed for almost 13 years, the parties shall cooperate

for early disposal of the obstructionist proceedings and shall

not seek necessary adjournments.




                                          [GAURI GODSE, J.]




                              15/15