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CASE NO.: Appeal (civil)  1103 of 1998

PETITIONER: Subhadra Rani Pal Choudhary

RESPONDENT: Sheirly Weigal Nain & Ors.

DATE OF JUDGMENT: 06/04/2005

BENCH: ASHOK  BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               This appeal is directed against an order passed by  learned Division Bench of Calcutta High Court dated November  26,1997 in First Appeal No.469 of 1980  whereby the Division Bench  of the High Court allowed the application of the Respondent No.1 and  directed the appellant to execute the lease deed with regard to  premises Nos.21/1/C and 21/1/D, Gora Chand Road, Calcutta-700  014 in terms of the order dated May 5, 1986 within a period of six  weeks from the date of order i.e. November 26,1997  for a period of  21 years commencing from the date of grant of relevant permission  by the Court, in default,  it would be open to the respondent No.1 to  apply before the trial court for execution of the lease. It was further  directed that the respondent No.1 was to pay the arrear of occupation  charges after adjustment of the amounts already paid by him with  regard to the concerned properties and excluding the period of non- possession of the premises No.21/1/C in terms of the letter of offer  dated November 12, 1985 within four weeks to the receiver and the  trial court may issue necessary directions to the receiver with regard  to disbursement of the said amount.  Aggrieved against this order, the  present appeal was filed by the appellant.                 This case involves a very chequered history.  There are  two properties bearing No.21/1/C and 21/1/D at Gora Chand Road,  Calcutta. The said properties initially belonged to one Smt.  Hemantabala Roy, the mother of the appellant. She bequeathed the  property in favour of her two daughters, Subhadra Rani Pal  Choudhary  (the appellant herein) and Jyotsnamayee Pal Choudhary  since deceased. Both were joint executrix under the will.  The will was  executed by Smt. Hemantabala Roy in favour of these two daughters  on April 2, 1971. The said will was registered on April 12, 1971.  Both  the sisters moved an application for grant of probate but the brothers  of the appellant  contested the probate.  Therefore,  Original Suit  No.5 of 1975 was registered.  However, probate was granted in  favour of the daughters. Thereafter, the brothers of the appellant  preferred an appeal before the High Court being First Appeal No.469  of 1980.  Pending First appeal,  the High Court appointed Smt.  Jyotsnamoyee Pal Chowdhary and Smt.Subhadra Rani Pal  Chowdhary  as administrators \026 cum- joint receivers  pendente  lite  by order dated 27th April 1981.  During the pendency of this matter,  an application was filed for seeking permission to let out both these  premises i.e. Nos.21/1/C and 21/1/D at Gora Chand Road, Calcutta.  The Division Bench of the High Court granted permission on April  30,  1985 to proceed and invite offers. Offers were invited by issuing  advertisement on November 20, 1985 and an offer was made by  Harvard House, Montessori School on November 12, 1985,  respondent No.1 was In-charge of the said school.   The respondent

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No. 1 being the highest bidder;  her bid was accepted and  Court by  order dated May 5,1986 permitted joint receivers to  lease out  premises in favour of the respondent No.1. The order dated May 5,  1986 reads  as under :         " Heard learned counsel for the parties.           It appears that the offer made by Harvard  House, 17 Camac Street, Calcutta-700 017, is  the highest. Learned counsel for the opposite  parties, appellants also agrees to this.           Leave is accordingly granted to the applicants  in terms of prayers (a) and (b) of this application  to let out the premises to Harvard  House, 17  Camac Street, Calcutta-700 017 for a period of  twenty one years on terms contained in the letter  of offer dated November 12, 1985 as annexed to  the affidavit-in-reply to this application.           This application is disposed of as above."

As a result of this, the offer of respondent No.1 who being  the  highest bidder  was accepted and the rent was fixed at Rs.6500 per  month with other conditions. The possession of the premises  No.21/1/D , Gora Chand Road, Calcutta was given to respondent  No.1 on June 16, 1986 in terms of the offer made by respondent  No.1. The respondent No.1 paid a sum of Rs.1,20,000 as security  and rent at the rate of Rs.6,500/- per month and Rs.900/- for the  maintenance of driving ways and lawns.  It was alleged that the  respondent No.1 also paid a sum of Rs.10,000/- towards income-tax  in respect of premises No.21/1/C. But no possession of the premises  No.21/1/C was given to respondent No.1 nor any lease deed was  executed in respect of premises No.21/1/D.  However, a draft lease  deed was sent to the joint receivers but it was not executed on the  ground that the respondent No.1 had made illegal construction in the  premises No.21/1/D in violation of the clause 6 of the letter of offer.     An application was moved by Respondent No.1 before the High Court  on 12.5.1987 for direction to  the joint receivers to deliver possession  of the premises No.21/1/C, Gora Chand Road and to execute the  lease deed in respect of both the premises.  The said application of  the respondent No.1 was dismissed by the Division Bench of the  Calcutta  (Justice S.P. Das Gosh & Justice L.M. Ghosh)  by order  dated August 11, 1987.  It was held that petitioner had not come with  clean hands as applicant had raised illegal construction in premises  No. 21/1/D as alleged by joint receivers.   Joint receivers   were also  permitted by the Court on  15.1.1987 to take appropriate legal action   against applicant.  A suit was also filed against applicant in Sealdah   Court .  The Division Bench dismissed the  application of applicant  and declined to grant any relief, either to execute lease for both the  premises, i.e.,  21/1/D  and 21/1/C  or  permit possession of premises  No. 21/1/C. Aggrieved against the said order dated August 11, 1987  respondent No.1. preferred a Special Leave Petition before this  Court. Meanwhile, the First Appeal filed    in a probate proceeding  by  the brothers of the appellant was disposed off by the High Court by  way of compromise between the parties on October 3, 1988.   Respondent No.1 filed T.S.No. 41 of 1989 before  learned District  Judge, Alipore on May 3, 1989 for specific performance of the  agreement arrived at on May 5, 1986 in pursuance of the order  passed by the High Court.  Then again another application dated  31.3.1989 was moved before  the High Court to sue the joint  receivers for specific performance of the agreement for granting lease  of both the premises. On December 4,1989 permission to sue the  joint receivers in respect of premises No.21/1/D was granted by the  High Court.  But no order was passed in respect of premises  No.21/1/C. Aggrieved against this order the respondent No.1 filed   S.L.P.(C) No.7489 of 1990 before this Court. Both the Special Leave  Petitions came up before this Court and they were dismissed by order  dated January 2, 1995. This Court passed the following order which

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reads as under:         "  Mr.Jaitley, learned counsel for the petitioner- lessee brings to our notice  two circumstances  viz. (i) that the suit filed by the Joint-Receivers  for modification has since been dismissed for  non-prosecution and to the best of the  information of his client, there is no application  for restoration; and (ii) clause 6 of the offer  made by him, which offer has been accepted by  the court, does expressly contemplate internal  modifications at the expense of the lessee which  the landlord was supposed to permit.  Shri  Jaitley says that the second circumstances was  not noticed by the High Court while passing the  order impugned in SLP) No.671/88,  though it is  noticed in the other   order which is the subject  matter of the SLP) No.7489 of 1990. Shri  Jaitley also says that so far as 21/1/C is  concerned, possession has not yet been  delivered to the petitioner-lessee  notwithstanding the fact that the auction was  held as far back as 1986. He says that the  lessee is suffering prejudice on that account.            We are of the opinion that these are all  matters which the High Court, which has  appointed the Joint Receivers, and which is  supposed to be in custody of the property,  should look into. It is open to the petitioner to  move the appropriate Division Bench of the High  Court for directions bringing to their notice all the  relevant facts. We are sure that on such  application being filed, it will be dealt with  according to law. With these observations the  Special Leave Petitions are dismissed."

After this order dated January 2, 1995, present  application was  moved before the High Court for direction and orders upon the  Administrators \026cum- Receivers, that is how the matter came up  before the High Court. The High Court in view of the observations  made by this Court allowed the application and directed as aforesaid.  Aggrieved against this impugned order dated 26th November, 1997  passed by the High Court  on application moved by  Respondent No.  1 (herein)  in First Appeal No.469 of 1980 (disposed of),  the Special  Leave Petition had been  filed by the appellant. In the meanwhile some developments took place which has no   material bearing,  but   it was brought to our notice  that Respondent  No. 1  went to America and she  divorced her husband who is  managing the School.  It was also pointed out that after the death of  Smt. Jyostnamoyee Pal Choudhary the property had further  exchanged hands. But that does not concern us so far as the  decision in the present appeal is concerned. Learned counsel for the appellant submitted that after October  3, 1988 when the appeal was dismissed by way of compromise  between the appellant and her brothers who challenged the probate,  the appellant became the absolute owner and no direction could be  given by the Court as property was no more custodia legis. It was  also submitted by  the learned counsel that  by order dated May 5,  1986,  the High Court permitted  the appellant to lease out the  property,  it was only  permission sought by joint receiver.   The lease  deed was not executed under the orders of  Court.  Therefore,  the  order dated May 5, 1986 is not capable of being enforced as the  order of the High Court. It was also submitted that by  order dated  August 11, 1987  the High Court  had overruled the contention of the  respondent No.1 for enforcement of the order dated May 5, 1986 of  the High Court to execute the  lease deed for both premises.  This

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order was reaffirmed by subsequent order dated 4th December, 1989  by Division Bench and no direction was given for executing the lease  deed in favour of respondent No.1 for premises No. 21/1/C because  of conduct  of Respondent No. 1 for raising  illegal construction  contrary to the terms and conditions of the  letter of offer. It was also  submitted that S.L.Ps. were filed  against  both these orders,  both   orders have been maintained by  Apex Court and  S.L.Ps.  were   dismissed.         It was also pointed  out that it was not brought to notice of  this Court while SLPs were argued that meanwhile  appeal pending  before the High Court had been disposed of.  SLPs were rejected ex  parte  and no notice was given to appellants.                 As against this learned counsel for the respondent No.1  pointed out that as per order dated May 5, 1986 the appellant  was  under obligation  to execute the lease deed for both the premises. It  was also pointed out that the property remained custodia legis  till the  Court released both the executrix as joint receivers,  they continue  to  hold the property in trust on behalf of Court.  It was also contended  that the High Court directed by order dated August 11, 1987 to joint  receiver to file a suit for illegal construction against Respondent No. 1  but that suit was not prosecuted and it was dismissed in default.  Therefore, the ground of illegal construction does not survive.  It was  further contended that by not executing the lease deed for the  premises No. 21/1/C,  the respondent suffered as she could not  acquire premises for accommodating  more students,  therefore,  the  respondent is entitled to damages. It was also contended that as per  the direction of this Court an application was moved by the  respondent herein and  the Division Bench had rightly approached  the matter and directed  appellant to grant lease for both the  premises in terms of the order dated May 5, 1986.                 So far as the first question raised by the learned counsel  for appellant that once appeal preferred by the brothers of the  appellant challenging the grant of probate is  dismissed on October 3,  1988, all the applications  or pending matters  come to an end,  appears to be justified.  Once the appeal stood dismissed then  the  property stood vested with the sisters. In this connection, our  attention was invited to Sections 211, 227 and 247 of the Indian  Succession Act, 1925. The said sections are reproduced below:         " 211. Character and property of executor or  administrator as such.- (1) The executor or  administrator, as the case may be, of a deceased  person is his legal representative for all purposes,  and all the property of the deceased person vests in  him as such.

       (2) When the deceased was a Hindu,  Muhammadan, Buddhist, Sikh, Jaina or Parsi or an  exempted person, nothing herein contained shall  vest in an executor or administrator any property of  the deceased person which would otherwise have  passed by survivorship to some other person.

227. Effect of probate- Probate of a will when  granted establishes the will from the death of the  testator, and renders valid all intermediate acts of  the executor as such.

247.    Administration, pendente lite, -  Pending any  suit touching the validity of the will of a deceased  person or for obtaining or revoking any probate or  any grant of  letters of administration the Court may  appoint an administrator of the estate of such  deceased person,  who shall have all the rights and  powers of a general administrator, other than the  right of distributing such estate, and every such

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administrator shall be subject to the immediate  control of the Court and shall act under its  direction."

According to Section 211,  an executor or administrator of a  deceased person is legal representative for all purposes and all the  property of the deceased person vests in him.  This Section lays  down that when there is an executor or administrator of the  deceased,  he is the legal representative of the deceased for all  purposes and all the property vests in him.  Section 227 says that  after the probate of the will is granted  then it becomes effective from  the death of the testator and shall render valid all intermediate acts of  the executor as such.  Therefore, according to Section 227, the  moment the probate is granted it will relate back from the date of  death of the testator and all property will be vested in the person in  whose favour  the probate was granted.  Section 247 only lays down  that administrator can be appointed  pendente lite  i.e. the Court can  appoint administrator who shall have all the rights and powers of a  general administrator other than the right of distributing such estate  and every such administrator shall be subject to the immediate  control of the Court and shall act under  its direction.         In this connection, learned counsel for the appellant invited our  attention to a decision of the Calcutta High Court in the case of   Gopal  Lal Chandra  vs. Amulyakumar Sur reported in AIR 1933  Calcutta 234.  It was held by the Calcutta High Court as under :

       " The view adopted by the Calcutta High Court in  respect of wills after  1870 is that, on the  executors obtaining probate, they immediately  become vested by force of statute with the  whole of the estate, which belong to the testator  at the time of his death."

       Learned counsel for the appellant also invited our attention to  another decision of the Calcutta High Court in the case of Bajranglal  Khemka & ors.   vs. Sm.Sheila Devi & Ors  reported in Vol.74  Calcutta Weekly Notes 444. In this case, the question was that what  is the powers of the administrators pendente lite and it was observed  that the property of the deceased vests with the administrator and  any application moved by the petitioner pro interesse suo and  stranger to the action, if aggrieved by the conduct of the general  administrator whether he has a right to obtain redress in an action at  law, it was observed that such application is maintainable against the  administrator pendente lite  on the original side.  But the question with  regard to the title of the property cannot be decided. It was observed  that as per the Original Side Rules specified class of persons can  apply and the relief can be asked for by such applicant.  But it was  observed that these Rules or the principles underlying them cannot  be invoked by the petitioner whose application is directed against  joint administrators pendente lite.         As against this, learned counsel for the respondent placed  reliance on a decision of this Court in the case of Hiralal Patni  vs.  Loonkaran Sethiya reported in AIR 1962 SC 21 wherein it was held  that receivers can be continued under orders of court even after  disposal of the matter.         Learned counsel for the respondent has also invited our  attention to another decision of this Court in the case of  Kunhayammed & Ors. vs. State of Kerala & Anr. reported in (2000) 6  SCC 359 and contended that by virtue of doctrine of merger the order  of the High Court stood merged with the order of the Apex Court.   Learned counsel for the respondent also invited our attention to  another decision of this Court in the case of  Late Nawab Sir Mir  Osman Ali Khan vs. Commissionerof Wealth Tax, Hyderabad  reported in 1986 (Supp.) SCC 700 wherein their Lordships have held

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that dismissal of Special Leave Petition cannot be constructed as  affirmation  by Supreme Court of the decision from which special  leave was sought for.  Learned counsel for the respondent further  invited our attention to the observation from the Law Relating to  Receivers by Sir John Woodroffe at pg.83  which reads as under :

       " When the Court orders a receiver to enter into  a contract the contract is made with the Court,  the approval by the Judge of the offer made by  the third  party constituting the contract.  Such   party may apply on summons that the contract  may be given effect to. It is not necessary that in  order to enforce his right, he should institute a  suit. A Court has complete power to enforce  summarily a contract made by it when managing  or administering an estate, whatever that  contract may be. Such power of enforcing  subsisting contracts made by it is not affected by  the fact that the Court has ceased to manage  the estate before such contract is carried out by  reason of the dismissal of the suit."

In order  to answer this question, we have to first decide   whether  the order dated 5th May, 1986  passed by the High  Court amounts to grant  of lease  in favour  of Respondent No.  1  or not?   A perusal of the order dated 5th May, 1986  makes   it clear that  the Court permitted  the appellant to enter into  lease  agreement with the respondent.  Since both  Subhadra  Rani Pal Choudhary  and Jyotsnamoyee Pal Choudhary  were  appointed as  Joint Receivers,  an application was filed  by  them seeking  permission from the Court to lease out premises  because the property  had  liabilities to discharge.  The Court  only permitted the parties to enter into the lease agreement  and,  the lease agreement was  entered between the parties.    The Court only granted leave to the applicants in terms of  prayer "a" & "b"  to let out the premises  to Harvard House,  for  a period of 21 years as per  the  terms and conditions in the  letter  of offer dated November 12,1985.  Therefore,   it was not  an order of the Court to lease out the property but only  permission   was granted  to the Joint Receivers  to  proceed  with the lease agreement of the scheduled property.         It was not the direction of the Court  that the appellant  shall enter into lease agreement. It was only a permission and  that  cannot be treated as an order of the Court, as if,  that Cour  had leased out the premises.  Therefore, this  should  be  made  clear that the lease agreement was entered into by the Joint  Receivers with the permission of the Court because the  scheduled property was subject matter of the first appeal.  Once the first appeal is dismissed then property no more  remain custodia legis and joint receivers stand discharged.   In  this connection reference may be made to  a decision of this  Court reported in  AIR 1962 Supreme Court 21 (V 49 C4) [  Hiralal Patni Vs. Loonkaran Sethiya and Ors.]  in which it was  observed as under: "Civil P.C. (1908), S.51 (d), O.40, R.1 \026  Appointment of receiver in suit \026 Duration of  appointment \026 Rules as  to.         Neither S.51(d) nor Order 40 of the Code of  Civil Procedure prescribes for the termination of the  office of receivership.   The law on the point may  briefly be stated thus: (1) If a receiver is appointed  in a suit until judgment, the appointment is brought  to an end by the judgment in the action.  (2) If a  receiver is appointed in a suit, without his tenure  being expressly defined, he will continue to be

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receiver till  he is discharged. (3)  But, after the final  disposal of the suit as between the parties to  the  litigation,  the receiver’s  functions are terminated,  he would still be answerable to the court as its  officer till he is finally discharged.  (4)  The court has  ample power to continue the receiver even after the  final decree.  If the exigencies of the case so  require.           Held on facts, that the Receivers continued by  the  preliminary decree  are entitled to function in  that capacity  till they  are  discharged, even though  a final decree for the sale of the properties of the  defendants was passed."          This Court has summarized the legal position.  So far as  the appointment of receiver is concerned,   it was clearly  laid   down that the receiver’s appointment   is co-terminus with  suit/appeal and if suit or appeal is disposed of then the  appointment is brought to  an end.  But at the same time the  court has a power to continue the receiver   after the final  decree,  if the exigencies of the case so require.   But in the  present case,  as mentioned above, the appeal was dismissed  on October 3, 1988 and Court did not reserve any power to  continue the receivers.  The Court categorically mentioned     that this  disposes of all the  pending applications. The Division  Bench while dismissing the main appeal made following  observation:         "On the disposal of this appeal, all pending  applications, if any shall also be deemed to have  been disposed of."

Therefore, so far as the High Court is concerned,  High  Court  completely disposed  of the matter and  had no  jurisdiction to pass any order on the subsequent application  filed by the parties.   Thus,  in this view of the matter, we are  of  the opinion that the order passed by the High Court in  purported observation  by this Court which was made in  ignorance of the fact that the appeal  had been disposed of, the  High Court would  not acquire any jurisdiction to pass any  order.  The High Court at the relevant time  had no jurisdiction  to pass the order when the matter  had already been disposed  of by it.  Therefore, the order passed by the High Court cannot   be sustained.         The next question is what is the effect of  two orders  passed by the High Court. One of the  scheduled properties i.e.  Premises No. 21/1/D  was given by the Joint Receivers to the   respondent and possession thereof was handed over to them  on 16th June, 1986.    The  respondent no. 1 made certain  construction therein and, therefore,  joint receivers moved the  High Court for appropriate action in the matter,  the respondent  No. 1 also moved the High Court for direction, for possession of  premises 21/1/C and to execute  lease deed for premises  21/1/D  and 21/1/C. That matter was disposed of by the  Division Bench of the High Court on 11th August, 1987 and in  that the Division Bench passed a detailed order not to offer the  possession of the premises   bearing No. 21/1/C or execution of  lease for both premises looking to her conduct as the joint  receivers moved the  Division Bench  that the respondent No. 1  was guilty of illegal construction.  Though Court earlier directed  joint receiver to file suit against  respondent No. 1 for  illegal  construction by Order dated 15.1.1987.  Suit No. 63 of 1987  was  filed for declaration and injunction against the   Respondent No. 1  in the Court  of 3rd Munsif,  Sealdah.         However,  this was  not  pursued  further by the  appellant  and it came to be dismissed for default. Thereafter another  

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application was moved by the respondent  No. 1 before the   Division Bench on 31ST March, 1989 seeking leave to sue joint  receivers  and reiterating all facts as mentioned in their  application dated May 12, 1987 which was disposed of on 11th  August, 1987.   The Division Bench after hearing both the parties at length  observed that there is  an allegation by the Joint Receivers  for  illegal construction in premises No. 21/1/D  of which possession  was delivered to Respondent No.1  on  16th June, 1986 for  which the Court  has already  passed the order on 15th January,  1987 to take  legal action against the  Harvard House,   Respondent No. 1 herein for violation of terms of lease   with  regard to  illegal construction  on the premises No. 21/1/D  and  a suit was filed. The Division Bench held that in order to get a  specific relief, the applicant  had to come with clean hands and  since the applicant had not sought permission for undertaking   internal modification, therefore, they have lost  the equity in  their favour.  It was also observed that meanwhile,  an   application was already moved  on 22nd July, 1989 for variation  and modification of  Court’s order dated May 5, 1986 and that  was pending and it would be open for the Division Bench to  pass an appropriate order either to vary the order dated 5th  May, 1986 or not .  But it was observed that looking  to the  conduct of the respondent it would  not be appropriate to give a  direction to execute the lease deed for Premises No. 21/1/C or  to  deliver  possession to the applicant. Therefore, that prayer  was  rejected.  So far as the recovery  of  sum of Rs. 1,20,000/-   as security  for execution of the lease  deed   in respect of  premises No. 21/1/D and also a cheque  for a sum of Rs.  10,000/-  sent to the Estate Duty Department for execution  of  lease  deed in respect of premises No. 21/1/C, the Division  Bench  directed that in the absence of  any specific prayer by   the applicant for  the refund of those  amounts it would not   proper for the Court to pass any  order.    However,   the Court  observed that since the parties already moved the court for  modification of  order dated 5th May, 1986  on 22nd July, 1987   the applicant  would  not  be left without any remedy regarding  these amounts on the  analogy of the principles in Section 22(2)  of the Specific Relief Act, 1963 and accordingly,  the Division  Bench declined to  grant  any relief in this application. However,  the Division Bench  took into consideration that the  respondent  herein has already filed a suit in the Civil Court on May 3, 1989   praying for specific performance  of the agreement for lease,  the leave to sue  the Joint Receivers   was necessary,   therefore,  after  hearing the parties observed that the dismissal  of the application of the Respondent No. 1 herein on 11th  August, 1987  would  not pose any impediment  to grant  leave  to sue the Joint Receiver-cum- Administrators  in respect of  Premises No. 21/1/D  for a suit pending between the parties.   But it was made  clear that  the Court had not gone  into the  merits of the respective contention that whether  despite the  violation  of the term No.6 in the  letter of offer dated November  12, 1985 the applicant could maintain a suit   for specific  performance of the contract.   The relevant portion  reads as  under:- "Regard being had to the facts and  circumstances of the present case, even though  the Courts rejected the application for proper  direction upon the Administrator Pendente lite - cum-Receivers dated 12.5.1997 by its order  dated 11.8.1987 we do not find any legal  impediment to our granting to the  applicant  leave to sue the Joint Receivers-cum- Administrator Pendente lite in respect of  premises No. 21/1/D Gorachand Road, Calcutta

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for which already a suit is pending in between  the parties,  even though we make it clear that  we have not really gone into the  merits of the  respective contentions as made by the applicant  on the one hand and the contending parties on  the other as to whether despite the violation of  the term no. 6 in the letter of offer dated  12.11.1985 the applicant  can still maintain a suit  for specific performance of the contract."

       So far as  the  Premises No. 21/1/C  is concerned,  the  Court  found that since the request of  the  applicant  (respondent therein)  was  rejected by the  Division Bench  on  11th August, 1987 and against  that Order the applicant   had  already  approached the Apex Court  and  the same has not  been disposed of,  the Court declined to interfere and rejected  the  application .   Aggrieved against this order, another Special  Leave Petition was also filed.         Now, in the light of these two orders passed by the  Division Bench, it clearly shows that so far as the request  of  the applicant to execute the lease deed with regard to   Premises No. 21/1/D is concerned,  the Court has already  granted permission to the applicant (respondent No. 1 herein)   to prosecute its suit filed before the Court for execution of the  lease deed of the aforesaid premises,  but declined to grant any  relief  for  the premises  No. 21/1/C.   Therefore, the prayer of  Respondent No. 1  for  Specific performance of order to  execute the  lease for premises No. 21/1/C failed and  subsequently  Division Bench cannot sit over the matter and  review it.    The SLPs  filed against both the orders dated 11th  August, 1987 and  4th December, 1987   were also dismissed  on 2nd January, 1995, the  result was that  both the  orders  stood affirmed, though some observations were made  by this  Court while dismissing S.L.Ps. without any notice to appellant  (herein).  More so, all the material facts were not brought to the  notice  of this Court,   that  meanwhile the first appeal out of   which  all the litigations arose had already stood disposed of by  way of compromise on 3rd October, 1988.   However,  this Court  made  observation under the impression that the  first appeal  was  still pending.  Had this fact been brought to the notice of  the Court perhaps these observations would not  have been  made.             However, after the disposal of  both the special leave  petitions  by  the Order dated 2.1.1995,   an  application  by  the respondent  No.1 herein  before the Division Bench of  Calcutta High Court inspired  by the observation of this Court  was not  warranted.  The important fact was suppressed from  this court that meanwhile appeal had been dismissed and  property was no more custodia legis. Yet it was contended  before this Court that since the suit filed for illegal construction  had been dismissed for non-prosecution and  no application  for restoration of the suit  has been moved,  as per Clause 6  (ii)  of the  Offer letter which  was  accepted by the Court  expressly  contemplated the  internal modification at the  expense of lessee  which landlord was  supposed to permit,    these contentions were noted by this  Court while dismissing  the  S.L.Ps.          After this,  present application was filed  by  respondent  No.1  before the High Court as aforesaid.         In this  background the argument of learned counsel for  appellant deserves to be accepted.   After  the dismissal of first  appeal by the High Court, property stood vested with  both  sisters and they became absolute owner and property no more  remain custodia legis.  The appointment of   Joint Receiver  

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came to an end and  they stood discharged.  As such,  there  was no need for the    Division Bench  to consider the  application filed by the applicant (respondent herein).  In fact,  while the order was passed by this Court on  2nd January, 1995  it was not brought to the notice of  this Court that the property  was no more  custodia  legis  as on that date the appeal filed by  the brothers of  the appellant had already been dismissed by  way of compromise.   It was clearly  mentioned  in the order  dated  October 3,1988,  as quoted above, "while disposing the  first appeal that all  the  applications stand  disposed of"   meaning thereby,  that at that  time no matter was pending in  the High Court and the order passed by  the Division Bench  was without jurisdiction.   It is true that this Court on January 2,  1995 under the bona fide  impression    gave  liberty to the  applicant to move the Calcutta High Court for appropriate relief.   But the net result is that both these Special Leave Petitions  were dismissed by this Court and no positive direction was  passed by this Court.   It was only the observation leaving the  respondent No.1  to seek an appropriate remedy  before  the  Division Bench of the High Court if permissible under the law.   But at the time  when this application was moved for   appropriate direction before the Calcutta High Court, the  Calcutta  High Court  was no more  seized   with the matter, as  the first appeal filed before the Calcutta High Court had  already  stood disposed of  on 3rd October, 1988.   Therefore, the  property was neither custodia legis nor was the High Court   competent to pass the impugned order.   In fact by  taking  recourse   to the  observation made by this Court  while  dismissing the  Special Leave Petitions, the respondent No.1  felt encouraged to move  the High Court and obtained a  direction which the High Court was not  competent to issue as  the property  in question was no more  custodia legis.            However,   we  cannot be oblivious of equity created  in  favour of Respondent No. 1. The  equity requires in the matter  that the Court permitted Joint Receivers to enter into a lease   with the respondent No.1, it would be unfair to leave the  respondent No.1 high and dry at this distance of time.     The  Division Bench by its order dated 4th December, 1988 did not  grant any relief except to sue the  joint receiver for  execution   of the lease deed  with regard to the premises No. 21/1/D but  denied the  possession of the premises No. 21/1/C or   execution of lease deed for this property. Therefore, we are not  inclined to pass any order with regard to the possession or  execution of lease for Premises No. 21/1/C and set aside the  order of High Court.   But so far as Premises No. 21/1/D  is  concerned, though no lease was executed but possession was  handed over to the  respondent  No. 1 herein on  16th June,  1986 and they are in possession since then.   Therefore, we  direct that the appellant shall execute the lease deed for  remaining period of the 21 years of lease from 16th June, 1986  on same terms and conditions as contained in offer letter  dated  12th November, 1985   and the  respondent shall pay arrears of  rent, if not paid so far and all other money in terms of the  Offer  dated 12th November, 1985 within one month of the receipt of   this Order.  In case,  the respondent fails to pay,  it will be open  for the appellant to proceed against the respondent No. 1 in  accordance with law. The appellant shall refund sum of Rs.  10,000/-  paid by respondent No. 1 towards  duty for premises  No. 21/1/C  or adjust against dues,  if  any.         The learned counsel submitted that the order of High  Court stood merged with that of  the order of this Court,  In this  connection reference may be made to decisions of this Court  Kunhayammed and Ors. Vs. State of Kerala and Anr.  reported   in  (2000) 6 SCC 359,  Indian Oil Corporation Ltd. vs. State of  Bihar  reported in (1986) 4 SCC 146,  Union of India  Vs. All

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India Services Pensioners’ Association and Another reported in  (1988) 2 SCC 580, Supreme Court Employees’ Welfare  Association  Vs.  Union of India and  Anrs.  Reported in  (1989)  4 SCC 187,   Commissioner of Income Tax, Bangalore   Vs.  Shree Majunatheaware Packing Products & Camphor Works ,     reported in  (1998) 1 SCC 598  and  P. Nallammal and Anr. Vs.    State Represented by  Inspector of Police  reported in  (1999)  6, SCC 559.  The principle of merger is not applicable to the   present case as both  the  Special Leave Petitions filed by the  respondent No.1 were dismissed by this Court and, therefore,  the orders passed by the Division Bench of  Calcutta dated 11th  August, 1987 and  4th December, 1988  did not  stand  merge  with the order of the Apex Court   dated 2.1.1995. The  dismissal in limine  does not amount to upholding of the law  propounded in the decision sought to be  appealed against.          It was also  contended that the respondent No.1  has   suffered damages because the  premises No. 21/1/C was not  given to Respondent No. 1 and Respondent No. 1 could not  provide more accommodation to admit  number of students and  suffered loss.  She invited our attention to Section 21  of  Specific Relief Act, and contended  that damages  should be  granted.     This argument is devoid of any merit as we have  already held above that  Respondent No. 1 has no case to seek  specific relief for premises  no. 21/1/C,  therefore, there is no  case made out for damages. Hence, this appeal is accordingly  disposed of with no order as to  costs.