LexAVENUE SUPERMARTS PVT. LTD. versus MRS. NISCHINT BHALLA & ORS.
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A B [2015] 11 S.C.R. 556 AVENUE SUPERMARTS PVT. LTD. v. MRS. NISCHINT BHALLA & ORS. (Civil Appeal No.8397 of 2015) OCTOBER 08, 2015 [RANJAN GOGOi AND R.K. AGRAWAL, JJ.] Suit-Administration of estate of deceased - Notice of c motion in suit - On facts, Notice of motion taken by defendants nos. 4A, 4B and 5 in the suit for enforcement and implementation of certain orders passed by the Court on consent of the parties to the suit - Order passed by High Court giving directions for confirmation of.the sale and D execution of the conveyance deed etc., of the immovable properly in favour of the present appellant- However; before the Division Bench, the Defendant Nos. 4A, 4B and 5 sought withdrawal of the Notice of Motion filed by them in the suit- Division Bench permitted withdrawal of the Notice of Motion E at the instance of the said defendants and held that the order of the Single Judge does not survive for consideration rendering the appeal infructuous - On appeal, held: In the Order; the Single Judge while allowing the Notice of Motion had held that the highest offer made by the appellant stood F accepted by all the parties to the suit and thereafter passed certain directions- Thus, a vested right was created in favour of the appellant and that cannot be set at naught simply by permitting the defendants to withdraw the Notice of Motion filed by them - Division Bench was to decide the appeal on G merits instead of permitting the withdrawal of the Notice of Motion and observing that the order of the Single Judge passed on that Motion does not survive for consideration - Order passed by the High Court not sustainable and is set H aside. 556 AVENUE SUPERMARTS PVT. LTD. v. NISCHINT BHALLA 557 R. Rathinave/ Chettiar and Another vs. V Sivaraman A and Others 1999 (2) SCR 313: (1999) 4 SCC 89; Sneh Gupta vs. Devi Sarup and Others 2009 (2) SCR 553:(2009) 6 SCC 194; Janatha Textiles and Others vs. Tax Recovery Officer and Another 2008 (8) SCR 1148: (2008) 12 SCC 582 - referred to. B 1999 (2) SCR 313 2009 (2) SCR 553 2008 (8) SCR 1148 Case Law Reference referred to. Para 8 referred to. Para 8 referred to. Para 8 CIVIL APPELLATE JURISDICTION: Civil Appeal No. c 8397 of 2015 D From the Judgment and Order dated 01.03.2012 of the High Court of Judicature at Bombay in Appeal No. 271 of 2009 in Notice of Motion No. 21 of 2006 in Suit No. 3706of1995 C. A. Sundaram, Ramji Srinivasan, Pratyush Panjwani, E Mahesh Agarwal, Shashank Manish, Vivek Jain, E. C. Agarwala for the Appellant. Vijay Hansaria, Aslam Ahmed, Puneet Singh Bindra, Dhiraj Mehta, Gagan Gupta, Vikas Mehta, Rajat Sehgal for F the Respondents. The Judgment of the Court was delivered by R.K. AGRAWAL, J. 1. Leave granted. 2. The present appeal has been filed against the judgment and order dated ·o 1. 03.2012 passed by the Division Bench of the High Court of Bomoay in Appeal No. 271 of 2009 in Notice of Motion No. 21 of 2006 in Suit No. 3706 of 1995. G H 558 SUPREME COURT REPORTS (2015] 11 S.C.R. A Before the High Court, an appeal was filed against the order dated 10.02.2009 passed by the learned single Judge of the High Court on a Notice of Motion taken by Defendant Nos. 4A, 48 and 5 respectively in the aforementioned suit for enforcement and implementation of certain orders passed by B the Court on consent of the parties to the suit. 3. However, before the Division Bench, the original Defendant Nos. 4A, 4B and 5 sought withdrawal of the Notice of Motion No. 21 of 2006 filed by them in the Suit No. 3706 of C 1995. The Division Bench of the High Court opined that as the Notice of Motion taken out by Defendant Nos. 4A, 4B and 5 seeking interim reliefs and now they seek withdrawal of that motion, they cannot be prevented from withdrawing the same with the liberty to seek appropriate relief to which they may be D entitled in the changed circumstances. It had further held that as a result of the withdrawal of the motion, the order of the learned single Judge passed on the motion dated 10.02.2009 does not survive for consideration rendering this appeal infructuous. E 4. Brief facts: (a) One Smt Durga Devi Hitkari was owner of various properties at Mumbai. She died in the year 1991. It F appears that there was some dispute between her heirs regarding t~e estate left by her. The plaintiffs therein filed the present -suit for administration of estate of the deceased. The Notice of Motio
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