Bombay High Court
Andheri (East) Mumbai 400 059 vs Mumbai 400 059 on 14 December, 2011
Bench: R. M. Savant
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lgc
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 Co-operative Housing Society ]
Limited ]
A Co-operative Housing Society formed ]
under the provisions of the Maharashtra ]
Co-operative 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
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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 Co-
operative 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 debtor-Society ?
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 Co-op. 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 :-
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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.
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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
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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
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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.
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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 vis-a-
vis 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
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validity. Rule is accordingly made absolute in the aforesaid terms with the
parties to bear their respective costs.
[R.M.SAVANT, J]
