Ellora Chemicals vs. Panchavati Co-Operative Housing Society Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8809 OF 2011

1	M/s.Ellora Chemicals	]
	A partnership Firm, duly registered under	]
	the provisions of the Partnership Act,	]
	having its office at 159, Marol Maroshi	]
	Road, Andheri (East) Mumbai 400 059	]
		]
2	Mr.Arvind S Chheda	]
	An adult Indian Inhabitant having his	]
	address at 159, Marol Maroshi Road	]
	Andheri (East) Mumbai 400 059	] Petitioners
	versus

Panchavati Co­operative Housing Society	]
Limited	]
A Co­operative Housing Society formed	]
under the provisions of the Maharashtra	]
Co­operative Societies Act, 1961 having its	]
address at Marol Maroshi Road, Near	]
Marol Police Station, Andheri (East)	]
Mumbai 400 059	] Respondent.

Mr Pratik Majumdar a/w Mr. Nilesh Gala i/by M P Savla and co. for the Petitioners.

Mr. Pramod Kumar Vachheta for the Respondent No.1.

CORAM : R M SAVANT, J. DATE : 14th December 2011

JUDGMENT :

1 Rule, with the consent of the parties made returnable

forthwith and heard.

2 The above Petition arises out of the order dated 6/5/2011

passed by the learned Judge, City Civil Court, Greater Bombay, by which order

lgc

the points for determination arising in the Application filed under Order XXI

Rule 22 of the Code of Civil Procedure by the Petitioners herein were framed.

The said Points are reproduced herein under :

• 1 Is it proved by Judgment Debtor No.3 Panchvati Cooperative Housing Society Limited that the consent terms dated 5/11/1999 and consent decree is not binding on Judgment debtor in the absence of prior approval of consent terms in General Body Meeting of the Judgment debtorSociety ?
• 2 Is it proved that some of the consent terms have been acted upon, if `Yes' what is it's legal effects ?
• 3 Is it proved by the Judgment debtor that prior permission of Registrar of Coop. Society is required to be obtained for selling and leasing out the property of the society ?
• 4 Is it proved by the Judgment debtor that by Resolution dated 22/7/2010 the Special General Body has rejected the Consent Terms dated 5/11/1999 filed in Suit No. 5142 of 1991 ?
• 5 What order?

3 The framing of the said points is taken exception to by the Petitioners on the ground that the answer to the said points will lead to impinging upon the validity of the decree which is beyond the jurisdiction of the Executing Court.

4 The facts necessary to be cited for adjudication of the above Petition are stated thus :

The Petitioners herein are the original Plaintiffs in BCC Suit No. 5142 of 1991. The said suit was filed for a declaration that the Plaintiffs are the lessees of a land admeasuring 2451.33 sq.mtrs forming part of the larger property admeasuring 14387.70 sq.mtrs under a Lease Agreement dated 15/10/1954, and also for a declaration that the Plaintiffs are entitled to the FSI in respect of the said land admeasuring 2451.33 sq.mtrs. In the said suit Consent Terms were filed by the parties on 5/11/1999 and the parties had sought a decree in terms of the said Consent Terms. The said suit was accordingly decreed in terms of the said Consent Terms.

5 After the said decree was passed in terms of the Consent Terms, the Petitioners filed an Application under Order XXI Rule 22 of the Code of Civil Procedure for issuance of a show cause notice to the Respondents herein. The said show cause notice accordingly came to be issued pursuant to which the Respondents herein filed a reply to the said show cause notice. It appears that in view of the pleadings of the parties, the trial Court has framed points for consideration as reproduced in the earlier part of this Order. As indicated above, the said points which, according to the trial Court, arise for consideration in the said proceedings under Order XXI Rule 22 have been taken exception to by the Petitioners.

6 It is the principal contention of the learned counsel for the Petitioners that in framing the said points, the validity of the Consent Decree in question would be impinged upon. The learned counsel would contend that in proceedings under Order XXI Rule 22 of the Code of Civil Procedure, the jurisdiction of the Court is limited to seeing as to whether the decree is executable or not, and the Court cannot go into the validity of the decree as it is well settled position in law that the Executing Court cannot go behind and beyond the decree. To buttress his submission, the learned counsel would relied upon the judgment of a Division Bench of this Court reported in 1997 (1) Bom.C.R.115 in the matter of Laxman Bala Surve and others v/s. Messrs Pesh Builders. It has been held by the Division Bench in the said judgment that the objections envisaged by Rule 22 of Order XXI are the objections in regard to executability of the decree and not objection in regard to the validity thereof because the executing Court cannot go behind the decree. It has to execute the decree as it stands. It is further held that the Appellant in the said case therefore cannot put forward the ground of validity of the decree as a ground to challenge the execution of the decree. Paras 11 and 12 of the said judgment are material and are reproduced herein under :

11. Having held that appeal lies under Clause 15 of the Letters Patent against an order under Rule 23 of Order XXI of the C.P.C., we may turn to the facts of the present case in order to decide whether the learned Single Judge was justified in rejecting the objection of the appellant in regard to the executability of the decree and order the decree to be executed by making the notice under Rule 22 absolute. The decree sought to be executed in this case was consent decree dated 5th May, 1986 passed in High Court Suit No. 1213 of

1986. The defendants in that suit filed a suit on 15th July, 1992 to set aside the above consent decree which was numbered as Suit No. 722 of 1993. The plaintiffs (respondents herein) thereupon took out a notice under Order XXI, Rule 22 of C.P.C. in execution of the decree dated 15th July, 1986 against the appellants (original defendants). That notice was duly served on the defendants. By the said notice, the defendants were asked to show cause why the consent decree dated 15th July, 1986 should not be executed against them. In response to the said notice, the defendants (present appellants) filed their reply objecting to the execution of the decree on the ground of pendency of the suit for setting aside the consent decree which was sought to be executed and the draft notice of motion therein for stay of execution of the same. The learned Single Judge, did not find the above objection tenable and hence made the notice under Rule 22 of Order XXI absolute. It is that order of the learned Single Judge which is sought to be challenged by the appellants in this appeal mainly on the ground of pendency of the suit to set aside the consent decree which is the subject matter of execution.

"12. We have carefully considered the submissions of the learned Counsel for the appellant in the light of the facts of the case set out above. Pendency of a suit to set aside a consent decree on the allegation that it was obtained by fraud or misrepresentation per se does not affect the validity and executability of the decree sought to be set aside. The objections envisaged by Rule 22 of Order XXI, are objections in regard to executability of the decree and not objection in regard to the validity thereof because the executing Court cannot go behind the decree. It has to execute the decree as it stands. The appellant, therefore, cannot put forward the ground of validity of the decree as a ground to challenge the execution of the decree. In view of the above legal position, we are of the clear opinion that in the instant case there is no merit in the objection raised by the appellants under Rule 22 of Order XXI, to the executability of the decree and the learned Single Judge was justified in rejecting the same and making the notice absolute. This appeal is, therefore, devoid of any merit and the same is dismissed. In the facts and circumstances of the case, we make no order as to costs.

7 The learned counsel for the Petitioners next relied upon the judgment of the Apex Court reported in 2006(6) Mh.LJ 708 in the matter of Rangnath Haridas v/s. Dr. Shrikant B Hegde wherein the Apex Court has held that whether there is Application under Order XXI Rule 22 of the Code of Civil Procedure, the parties are directed to give effect to the terms of a consent decree. The learned counsel lastly relied upon the judgment of a learned Single of this Court reported in 2001 Vol. 103(3) Bom. L R 139 in the matter of M/s. Shree Steel Centre & ors. v/s. Union Bank of India, wherein in Para 9 the object of a notice under Order XXI Rule 22 has been stated. It has been held in the said judgment that the object of the Legislature in making provision in the form of Order XXI Rule 22 of the Code of Civil Procedure to give notice to the judgment debtor if the execution is started after two years is to give an opportunity to the judgment debtor to satisfy the decree before other coercive methods of execution and realization of the decretal amount are resorted to. It has been held that Order XXI Rule 22 is a rule of caution and does not in any manner affect the executability of the decree.

8 Per contra, the learned counsel for the Respondent made submissions that the points raised are not revolving around the validity of the decree in question, but in fact it is as regards its executability.

9 Having heard the learned counsel for the parties, in my view, the points which have been formulated in the impugned order for consideration in the said proceedings would have to be set aside as prima facie, Point Nos.1, 3 and 4 are the points which impinge upon the validity of the decree in question. As held in the judgments (supra), the jurisdiction of the Executing Court visavis an application under Order XXI Rule 22 of the Code of Civil Procedure is only restricted to the executability of the decree and not its validity. The Executing Court is obligated to execute the decree as it stands. Only because the Judgment Debtors or the Objectors raised an issue regarding the manner in which the decree was passed, it is not open for the Executing Court to frame Issues which would impinge upon the validity of the decree. If it is the case of the Judgment Debtors that the said decree has been passed on account of fraud etc. it is for them to file appropriate proceedings for the same, and the said Issue cannot be agitated in an application filed under Order XXI Rule 22 of the Code of Civil Procedure. In terms what is stated herein above, the Executing Court would therefore restrict itself to the Issue of executability of the decree in the said proceedings under Order XXI Rule 22 of the Code of Civil Procedure.

10 In that view of the matter, the Points which have been framed by the trial Court are quashed and set aside. The Executing Court would decide the said proceedings under Order XXI Rule 22 of the Code of Civil Procedure restricting itself to the executability of the decree in question and not its

validity. Rule is accordingly made absolute in the aforesaid terms with the parties to bear their respective costs.

[R.M.SAVANT, J]