Bombay High Court
Zenal Construction Pvt. Ltd vs Vasudev Vishandas Kataria And 4 ... on 1 December, 2016
Bench: A.S. Oka
sng 1 appeal-705.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.705 OF 2012
IN
CHAMBER SUMMONS NO.1839 OF 2011
IN
EXECUTION APPLICATION NO.883 OF 2011
IN
DISPUTE CASE NO.CC/IV/149 OF 2007
Zenal Construction Pvt. Ltd. .. Appellant
Vs
1. Vasudev Vishandas Kataria,
2. Mamata Vasudev Kataria,
3. Rajani Dharshan Kataria,
4. Harnesswala Co-op.Housing Society Ltd., and
5. Arvind Chakravati. .. Respondents
-
Shri Girish Godbole along with Ms. Sarika Mehra i/b LJ Law for the
Appellant.
Shri Nitin Thakkar, Senior Counsel along with Ms. Sneha Dedhia i/b
Ms. S.S. Bangera for the Respondent No.4.
Shri Manoj Nikose for the Respondent No.5.
-
CORAM : A.S. OKA & A.A. SAYED, JJ
DATE ON WHICH SUBMISSIONS WERE HEARD : 1ST JULY 2016
DATE ON WHICH JUDGMENT IS PRONOUNCED: 1ST DECEMBER 2016
sng 2 appeal-705.12
JUDGMENT : (PER A.S. OKA, J)
1. By this Appeal, the Appellant has taken an exception to the
Judgment and Order dated 14 th June 2012 passed by the learned Single
Judge in a Chamber Summons in the pending Execution Application.
2. Briefly stated the facts of the case are as under:-
(a) A Development Agreement was executed by and
between the Appellant and the fourth Respondent
which is a Co-operative Housing Society duly
registered under the Maharashtra Co-operative
Societies Act, 1960 ( for short "the Co-operative
Societies Act"). The first to third Respondents filed a
Dispute under Section 91 of the Co-operative
Societies Act before the Co-operative Court at
Mumbai. The Dispute was filed against the present
Appellant and the fourth Respondent Society. Even
the fifth Respondent who was at the relevant time
the Chairman of the fourth Respondent Society was a
party to the Dispute. There was a prayer made in the
Dispute directing the Appellant to hand over the
possession of the property of the fourth Respondent
which was the subject matter of the Development
Agreement;
sng 3 appeal-705.12
(b) On 20th February 2008, the consent terms were filed
in the said Dispute to which the parties to this Appeal
are signatories;
(c) On 17th June 2008, a commencement certificate was
obtained by the Appellant from the Mumbai
Municipal Corporation. This fact was communicated
by the Appellant by its letter dated 26 th June 2008 to
the fourth Respondent stating therein that the bank
guarantee in the sum of Rs.1.5 crores will be
furnished by 15th July 2008;
(d) Under the consent terms, the Appellant agreed to
construct a building consisting of stilt plus podium
and 9 upper residential floors as per the amended
plan submitted to the Mumbai Municipal
Corporation, a copy of which was annexed to the
consent terms. It was provided that for making any
variation or change in the said plans, the Appellant
shall take permission of the fourth Respondent
Society;
sng 4 appeal-705.12
(e) Under the consent terms, the Appellant agreed to
provide a new flat on ownership basis free of cost on
the first floor immediately above the podium car
parking of the proposed building in lieu of the
existing Flat No.1A to the first and second
Respondents. The area of a new flat was agreed to
750 sq. ft. (carpet area). The Appellant also agreed
to provide a new flat on ownership basis free of cost
ig on the same floor to the third Respondent. The said
flat in the proposed building was agreed to have an
area of 750 sq. ft (carpet area). Clause 7 of the
consent terms provides that the Appellant shall get
the proposed amended plan approved and
commencement certificate for construction of the
building within a period of 45 days from filing of the
consent terms;
(f) An undertaking was given by the Appellant to
provide a bank guarantee of Rs.1.5 crores to the
fourth Respondent Society within a period of 30 days
from the date on which the commencement
certificate is issued by the Mumbai Municipal
Corporation. It was provided in the consent terms
sng 5 appeal-705.12
that the bank guarantee shall be valid till the
Appellant obtains an occupation certificate in respect
of the proposed building and the first to third
Respondents are placed in vacant and peaceful
possession of the flats respectively agreed to be
allotted to them free of cost;
(g) An undertaking was given by the Appellant not to
ig commence construction unless and until the bank
guarantee as aforesaid was furnished. The consent
terms also record that first to third Respondents have
handed over the possession of the Flat Nos.1A and
1B to the Appellant to facilitate development of the
property;
(h) Certain amounts were to be paid by the Appellant to
the first to the third Respondents as provided in
Clause 15 of the consent terms. The Appellant was
to pay corpus fund of Rs.18 lakhs to the first and
second Respondents together for the Flat No.1A and
Rs.18 lakhs to the third Respondent for the Flat
No.1B;
sng 6 appeal-705.12
(i) Various other undertakings of the Appellant were
incorporated in the consent terms dated 20 th
February 2008;
(j) The learned Judge of the Co-operative Court passed
an order on 20th February 2008 recording that the
parties to the consent terms were identified by the
respective Advocates and they made a statement that
ig the contents of the consent terms are true and
correct. The undertakings in the consent terms were
accepted under the said order. On 1 st March 2008,
the learned Judge of the Co-operative Court passed
an order disposing of the Dispute;
(k) On 29th October 2010, the learned Judge of the Co-
operative Court passed an award directing that the
Dispute was disposed of in terms of the consent
terms and the award be drawn accordingly;
(l) On 24th August 2011, the learned Judge of the Co-
operative Court No.4 issued Execution Certificate
under Section 98 of the Co-operative Societies Act
on the basis of the Application made by the fourth
sng 7 appeal-705.12
Respondent. On the basis of the said certificate that
the Execution Application was filed before the
learned Single Judge;
(m) On the basis of the Application dated 22nd October
2008 made by the Appellant, the learned Judge of
the Co-operative Court extended the time granted to
the Appellant under the consent terms to furnish the
ig bank guarantee till 6th November 2008. Thereafter,
time was extended from time to time. Lastly, on 2 nd
March 2009, the learned Judge of the Co-operative
Court extended the time for giving bank guarantee
till 17th April 2009.
(n) On 9th September 2011, the fourth Respondent filed
an Execution Application before the learned Single
Judge on the basis of the award made in the Dispute
filed by the first to third Respondents and the
certificate issued by the learned Judge of the Co-
operative Court;
(0) On 19th September 2011, a warrant of possession
under Rule 35 of Order XXI of the Code of Civil
sng 8 appeal-705.12
Procedure, 1908 ( for short "the said Code") was
ordered to be issued in the Execution without issuing
a notice under Rule 21 of Order XXII of the said
Code;
(p) The Appellant was dispossessed in execution of the
warrant on 30th September 2011. The Appellant
allegedly became aware of the execution on the same
day on 8th November 2011, the present Appellant
filed a Chamber Summons raising an objection to the
Execution Application and inter alia, praying for
restoration of possession ;
(q) By the impugned order, the said Chamber Summons
has been dismissed by the learned Single Judge;
4. In the affidavit-in-support of the Chamber Summons taken
out by the Appellant, it is stated that on the basis of the warrant for
possession issued in execution, on 30 th September 2011, the Appellant
has been dispossessed from the suit property with incomplete building
structure of ground, podium plus three upper floors. It is claimed that
the Appellant became aware of the warrant of possession only on 30 th
September 2011 when a Director of the Appellant received an
sng 9 appeal-705.12
intimation from a Bailiff from the office of the Sheriff about his visit to
the property for execution of the warrant for possession. It is claimed
in the affidavit-in-support filed by Shri Prakash J. Barot, a Director of
the Appellant that as the Appellant never wanted to disobey the order
of the Court, formal possession of the property was handed over
without any objection. However, machinery, material and belongings of
the Appellant are still lying on the property. It was contended that the
warrant of possession was executed in a most dishonest manner by the
fourth Respondent Society. It was contended that the consent decree
was not executable. It was contended that the consent decree was
nothing but a modification of the terms of the Development Agreement
dated 11th December 2006. Various steps taken by the Appellant for
development of the property such as deposit of large amount of
premium with MHADA were set out in the affidavit. It was urged that a
notice under Sub-Rule (1) of Rule 22 of the Order XXI of the said Code
was not served.
5. Various contentions were raised in support of the Appeal
including the contention that the fourth Respondent is not a decree
holder as it was an opponent in the Dispute under Section 91 of the Co-
operative Societies Act. It was contended that there was no executable
award or decree. It was pointed out that the Dispute was disposed of
in terms of the consent terms on 1 st March 2008 and, therefore, the
sng 10 appeal-705.12
learned Judge of the Co-operative Court could not have made an award
on 29th October 2010. It was submitted that the execution certificate
issued by the learned Judge of the Co-operative Court is not legal on
the basis of which the execution could not have been filed. It was
pointed out that the certificate was issued not on the basis of the
purported award dated 29th October 2010, but on the basis of the order
dated 1st March 2008 by treating it as an award.
6.
The learned counsel appearing for the Appellant submitted
that the provision of Sub-rule (1) of Rule 22 of the Order XXI of the said
Code has been always held to be mandatory and non-compliance
thereof vitiates the execution proceedings. It was submitted that if the
notice of execution would have been served on the Appellant, an
objection to executability could have been raised by the Appellant even
before the warrant for possession was issued. Reliance was placed on
the decision of the Apex Court in the case of Bhanwar Lal v.
Satyanarain and Another1 as well as the decision of the Apex Court in
the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and
Another2. It was submitted that under Rule 316 of the Bombay High
Court (Original Side) Rules, 1980, there is no discretion whatsoever
and once the execution is filed beyond the two years from the date of
the decree, the Prothonotary and Senior Master is under an obligation
1 (1995)1 SCC 6
2 (1997)3 SCC 694
sng 11 appeal-705.12
to serve notice in Form 49 appended to the said Rules to the judgment
debtor. He urged that in view of the decision of the Apex Court in the
case of Iridium India Telecom Ltd. v. Motorola INC. 1, the Original Side
Rules will prevail and, therefore, Sub-rule (2) of Rule 22 of the Order
XXI of the said Code which confers discretion on the Court to dispense
with the notice under Sub-rule (1) of Rule 22 of the Order XXI of the
said Code will not be available. It was urged that in any case, the
Prothonotary and Senior Master has no such discretion. It was
submitted that Sub-rule (3) of Rule 22 of the Order XXI of the said Code
added by the Maharashtra Amendment dated 30 th September 1966 does
not exist on the Rule Book in view of the Central amendments to the
said Code effected for the years 1999 and 2002. It was submitted that
as the Dispute was disposed of by an order dated 1 st March 2008 in
terms of the consent terms, in view of Rule 7 of Order XX of the said
Code, the date of the award will be 1 st March 2008. The submission is
that as the notice in terms of the Rule 316 was not served, the order of
issue of warrant and the execution thereof was illegal. The learned
counsel appearing for the fourth Respondent supported the impugned
order. He urged that there is a complete breach committed by the
Appellant of the relevant terms and conditions of the consent award.
He urged that the order dated 29 th October 2010 directing the award to
be made in terms of the consent terms was not challenged by the
Appellant and, therefore, the Execution Application filed on 9 th
1 (2005)2 SCC 145
sng 12 appeal-705.12
September 2011 was well within two years from the date of the
executable award. He urged that the members of the Society are out of
possession and no interference is called for.
7. We have given careful consideration to the submissions.
We have perused the written submissions on record. It will be
necessary to make a reference to some of the terms and conditions
incorporated in the consent terms filed before the learned Judge of the
Co-operative Court in the Dispute filed by the first to third Respondents.
The fourth Respondent Society is a party to the Dispute and to the
consent terms. It is, therefore, necessary to make a reference to the
relevant terms and conditions in the consent terms which read thus:
"1. The Developer Opponent No.2 shall construct
Proposed Building consisting of stilt plus
podium (for car parking) and 9 upper
residential floors as per the amended plans now
submitted to the Mumbai Municipal
Corporation for its approval, the copy whereof
is annexed hereto and marked as Exhibit "A"
colly. The Developer shall not construct the
basement in the proposed building. There shall
be 2 car lifts for podium car parking in the
proposed building.
4. The Opponent No.2 Developer shall provide
permanent alternate accommodation a new flat
on ownership basis free of cost on 1 st floor
immediately above the podium car parking of
the proposed building comprising of an area of
750 sq. ft. carpet including lobby area of 50 sq.
ft. (and excluding area of 75 sq. ft. elevation
Dry Balcony, Indian Seating, Niches etc.) as is
sng 13 appeal-705.12
provided in the Development Agreement dated
11-12-2006 (executed between opponent No.1
and 2) in lieu of existing Disputed Flat No.1-A
to the Disputants No.1 and 2 in accordance
with the plan annexed at Exh."A" colly
heretoabove.
5. The Opponent No.2 Developer shall provide
permanent alternate accommodation a new flat
on ownership basis free of cost on 1 st floor
immediately above podium can parking of the
proposed building comprising of an area of 750
sq. ft. (Net carpet area) including lobby area of
50 sq. ft. (and excluding area of 75 sq. ft.
elevation Dry Balcony. Indian Seating, Niches
ig etc.) as is provided in the Development
Agreement dated 11-12-2006 (executed
between opponent No.1 and 2) in lieu of
existing Disputed Flat No.1-B to the Disputant
No.3 in accordance with the Plan annexed at
Exhibit "A" colly hereto above.
6. The Opponent No.2 Developer shall construct
minimum 8 stilt car parking on the ground floor
of proposed Building to be given on ownership
basis to the 8 existing members of the society
Opponent No.1 including Disputants herein.
7. The Opponent No.2 Developer shall get the
proposed amended plan approved and obtain
the Commencement Certificate of construction
of proposed building from the Mumbai
Municipal Corporation within 45 days from the
date of filing of this consent terms in this
Hon'ble court.
8. The Opponent No.2 developer given
undertaking to this Hon'ble court that they will
provide and give Bank Guarantee of Rs.1.5
crores to opponent No.1 society within 30 days
from the date of issue of commencement
certificate by the Mumbai Municipal
Corporation for construction of proposed
building. The said Bank Guarantee shall remain
valid till the Developers obtain Occupation
Certificate of the proposed Building from the
sng 14 appeal-705.12
Mumbai Municipal Corporation/Competent
Authority and the Disputants are given vacant &
peaceful possession of their flats in the new
Building. The said Bank Guarantee shall be of
any Nationalized Bank/Schedule Bank but not
of any cooperative bank.
9. The Developers Opponent No.2 further
undertakes to this Hon'ble Court that they shall
not commence the construction work of the
proposed Building unless and until they give the
said Bank guarantee of Rs.1.5 crores to the
Opponent No.1."
8. The clause no.10 in the consent terms provides that in the
event a default as provided therein is committed by the Appellant, the
Dispute will stand allowed in terms of the prayer clauses (a) and (b)
thereof. We are not reproducing the Clause No.10 as the same forms a
part of the order passed by the Co-operative Court which we are
reproducing. As noted earlier, on 20th February 2008, the consent terms
were taken on record. On 1st March 2008, the learned Judge of the Co-
operative Court No.4 passed an order disposing of the Dispute. What is
material is Paragraph 10 of the said order which reads thus:
"10. In the event the developer opponent no.2 for
whatsoever reason unable to get the proposed
amended plan (annexed at Exhibit-A Colly)
approved and obtain Commencement Certificate
from the Mumbai municipal Corporation in respect
of the construction of proposed building within 45
days from the date of filing of this Consent terms in
this Hon'ble Court and give bank guarantee of
Rs.1.5 crores to the opponent no.1 society within
30 days from the date of issuance of said
commencement certificate by the Mumbai
Municipal Corporation in respect of construction of
proposed building, then there shall be an order,
sng 15 appeal-705.12
Decree and award as prayed for in terms of prayers
(a) and (b) of the dispute application i.e.
(a) It be declared that resolutions passed in the
meetings held on 1-8-2004, 15-8-2004 and
15-11-2006 of the opponent no.1 society are
arbitrary illegal, bad in law and against the
provisions of M.C.S. Act, Rules and Bye-laws
of the opponent no.1 society.
(b) It be declared that the development
agreement dated 11-12-2006 and Power of
Attorneys dated 10-9-2004 and 11-12-2006
and other documents executed by and
between the opponents no.1 and 2 and 3 in
pursuant to the reconstruction,
redevelopment of opponents no.1's property
bearing CTS No.33(5) part, Gurunanak Road,
10th Road, JVPD Scheme, Mumbai - 400 049
admeasuring about 608.68 sq. meters, is
illegal, bad in law, and not binding upon the
disputants" and as such the contract given
by opponent no.1 to opponent no.2 in
respect of redevelopment of property of
opponent no.1 including all resolutions
passed by opponent no.1 thereof is
cancelled forthwith and whatever the
payment is made by opponent no.2 to
opponent no.1 and its members including
disputants herein will become forfeited,
the opponent no.2 shall forthwith vacate
and handover possession of opponent
no.1's property to them, and opponent
no.2 have no claim, right, title and interest
upon the property of opponent no.1
including damages against the opponent
no.1 and its members including disputants
and the decree/ awards be drawn/passed
accordingly."
(emphasis added)
9. Thus, in case of breaches specified in Clause 10, the
Dispute was to stand allowed in terms of prayer clauses (a) and (b).
sng 16 appeal-705.12
The prayer clause (b) provides for the Appellant vacating and handing
over possession of the property of the fourth Respondent Society to the
said Society. It was this clause which was invoked for seeking a
possession warrant.
10. In the order dated 1st March 2008, there is no specific
direction issued for drawing an award in terms of the consent terms.
The said order was passed by the learned Judge of the Co-operative
Court No.4 on 29th October 2010. The said order reads thus:
"In view of the judgment and order passed by my
Ld. Predecessor Judge, on 1-3-2008 and award is
not passed.
After perusing the consent terms which bears the
signatures of the parties and Advocates. I pass the
award in terms of consent terms accordingly.
Consent terms award
1) The dispute is disposed off in terms of
consent terms.
2) No order as to costs.
3) award is accordingly drawn."
(emphasis added)
11. We must note here that admittedly the orders dated 1st
March 2008 and 29th October 2010 have attained finality and thus,
they bind the parties. The correctness of the said orders cannot be gone
into in the execution proceedings and therefore, in this Appeal as well.
sng 17 appeal-705.12
Therefore, we will have to proceed on the footing that the award was
ordered to be made by the order dated 29th October 2010. An
argument was canvassed by the Appellant that in view of Rule 7 of
Order XX of the said Code, the date of the judgment shall be the date of
the award. In the present case, on 1st March 2008, the learned Judge
of the Co-operative Court passed an order on the basis of the consent
terms without directing that an award should be made in terms of the
consent terms. Thereafter, the specific order which is noted above is
passed on 29th October 2010 directing that the award be drawn in
terms of the consent terms. The said order specifically records that the
award was not passed by the order dated 1 st March 2008. It is not the
case of the Appellant that it was not aware of the said order which
specifically records that the award was not passed. After having
accepted the correctness of the said order dated 29 th October 2010, now
it is not open for the Appellant to raise a contention that the award
shall be deemed to have been made on 1 st March 2008. In view of the
fact that the order dated 29 th October 2010 has attained finality, this
Court will have to proceed on the footing that the award was made on
29th October 2010.
12. On this aspect, we must note here that there appears to be
some reason as to why the award was not ordered to be made earlier. A
compilation was tendered across the bar by the learned counsel
sng 18 appeal-705.12
appearing for the Appellant which contains the copies of the
Applications made by the Appellant from time to time to the Co-
operative Court. On 22nd October 2008, an Application was made by
the Appellant stating that on the earlier date, the first and second
Respondents have filed a reply and the Appellant was desirous of filing
a rejoinder. Therefore, a prayer was made that the Dispute be kept on
6th November 2008 and earlier order to furnish the bank guarantee in
favour of the fourth Respondent Society be extended till 6 th November
2008. Accordingly, extension was granted by the learned Judge of the
Co-operative Court. There are subsequent orders passed on 6 th
November 2008, 25th November 2008, 4th December 2008, 16th
December 2008 and 12th January 2009 extending the time to furnish
the bank guarantee. On 16 th December 2008, time was granted as a
last chance. Lastly by an order dated 2 nd March 2009, time was finally
extended by the Co-operative Court till 17 th April 2009. It appears that
on 14th August 2009, an Application was made by the Appellant before
the Co-operative Court containing the following prayer:-
"(a) that Opponent No.2 be allowed to furnish the
Bank Guarantee of Rs.150 lacs to the society on or
before 15th October 2009 and Clause of consent terms
of furnishing Bank Guarantee be extended upto 15 th
October 2009 or allow the Opponent No.2 to deposit
Rs.75,00,000/- in Bank in the name of society."
sng 19 appeal-705.12
13. The said Application clearly records the admitted position
that the commencement certificate was obtained by the Appellant as
late as on 17th June 2008 after expiry of the period provided in the
consent terms. It also records that the time to furnish bank guarantee
was lastly extended till 17th April 2009 and it specifically records that
the Applications were made on 17 th April 2009 and 15th June 2009 for
grant of further extension of time for furnishing the bank guarantee.
The said Applications were kept for orders, but the extension was not
granted. Thus, it is crystal clear that as provided in Clause 7 of the
consent terms, the commencement certificate was not obtained by the
Appellant within a period of 45 days from the date of filing the consent
terms. Admittedly, the bank guarantee of Rs.1.5 crores was not
furnished by the Appellant within 30 days from the date of issuance of
commencement certificate as provided in clause 8 of the consent terms.
In fact, the bank guarantee was never furnished though the time was
finally extended till 17th April 2009. Therefore, Clause 10 of the consent
terms was squarely attracted as breaches were committed by the
Appellant. As there was a failure to obtain commencement certificate
within the specified time and to furnish bank guarantee within the
specified time, the Dispute stood decreed in terms of the prayer clauses
(a) and (b) which we have quoted above which are set out in the order
dated 1st March 2008. We may note here that the building of the fourth
sng 20 appeal-705.12
Respondent Society containing residential premises of its members was
already demolished by the Appellant. The award in terms of the prayer
clause (b) which became operative provided that the Appellant shall
hand over the possession of the property to the fourth Respondent
Society. The fact that the Applications were repeatedly made by the
Appellant for extension of time show that no award was made in terms
of the consent terms. Perhaps, that is the reason why subsequently, the
award was ordered to be made.
14. As stated earlier, the date of the award will have to be
treated as 29th October 2010. The provisions regarding settlement of
disputes are contained in Chapter IX of the Co-operative Societies Act.
Section 96 of the Co-operative Societies Act deals with the decision of
the Co-operative Court. As far as the execution is concerned, the
relevant provision is Section 98 which provides that an order passed by
the Co-operative Court under Section 96, if not implemented, on a
certificate signed by the Co-operative Court, it shall be deemed to be a
decree of a Civil Court and shall be executed in the same manner as a
decree of such Court. Section 98 of the Co-operative Societies Act reads
thus:
sng 21 appeal-705.12
"98. Money how recovered.- Every order passed
by the Official Assignee of a de-registered society
under sub -section (3) of section 21 A or every
order passed by the Registrar or a person
authorised by him under section 88 or by the
Registrar [or the Co-operative Court under
section 95 or by the Co-operative Court under
section 96, every order passed in appeal under
the last preceding section every order passed by
a Liquidator under section 105, every order
passed by the State Government in appeal
against orders passed under section 105 and
every order passed in revision under section 154
shall, if not carried out,-
(a) On a certificate signed by the Official
Assignee or the Registrar or the Cooperative
Court or a Liquidator, be deemed to be a decree
of a Civil Court, and shall be executed in the
same manner as a decree of such Court, or
(b) be executed according to the law and under
the rules for the time being in force for the
recovery of arrears of land revenue:
Provided that, any application for the recovery in
such manner of any such sum shall be made by
the Collector, and shall be accompanied by a
certificate signed by the Registrar. Such
application shall be made within twelve years
from the date fixed in the order and if no such
date is fixed, from the date of the order."
15. Thus, on a certificate issued by the Co-operative Court
under Section 98, the decision of the Co-operative Court on a Dispute
shall be deemed to be a decree of a Civil Court and such a decree can be
executed by a Civil Court. In the present case, the certificate has been
issued on 24th August 2011.
sng 22 appeal-705.12
16. As stated earlier, after the said certificate was issued,
execution application was filed in this Court on 9 th September 2011. It
is true that the Rule 7 of Order XX of the said Code provides that the
decree shall bear the date on which the judgment was pronounced. In
the present case, there is no judgment delivered by the Co-operative
Court. The question is whether the award was ordered to be made in
terms of the consent terms. In the present case, the award was ordered
to be made for the first time on 29 th October 2010. Moreover, the
decision of the Cooperative Court becomes an executable decree only
on a certificate issued under Section 98 of the Cooperative Societies
Act. Under Rule 22 of Order XXI, it is mandatory to issue a notice to
the persons against whom execution is applied requiring him to show
cause on a date fixed provided the Application for execution is made
more than two years after the date of the decree. In the present case,
the date of the decree cannot be any date prior to 29 th October 2010
inasmuch as on that date, the Co-operative Court directed the award to
be made in terms of the consent terms. As noted earlier, the said order
was never challenged by the Appellant. In any event the decision of the
Co-operative Court became an executable decree only when the
certificate under Section 98 was issued on 24 th August 2011. We must
note here that the argument of the Appellant based on the decision of
the Apex Court in the case of Iridium India Telecom Ltd. is that the
execution will be governed by Rule 316 of the Bombay High Court
sng 23 appeal-705.12
(Original Side) Rules, 1980. Rule 316 of the Bombay high Court
(Original Side) Rules reads thus:
"316 Notice under Order XXI, Rule 22 of the Code of
Civil Procedure.- When the provisions of Order XXI,
Rule 22 of the Code of Civil Procedure apply, the
Prothonotary and Senior Master shall issue notice on
the application for execution in Form No.49."
17. Even accepting that Rule 316 is mandatory, the execution
was filed within a period of two years from the date of the
award/executable decree.
18. There was some argument canvassed in the Chamber
Summons that the fourth Respondent was not the Disputant in the
Dispute and, therefore, the Execution Application at the instance of the
said Respondent is not maintainable. We have carefully perused the
provisions of Part-II of the said Code which deals with the execution
and Order XXI of the said Code. All these provisions deal with the
execution of a decree. The Application for execution under Rule 11 of
Order XXI of the said Code is to be made by a decree holder. The
decree holder is defined under Sub-section (3) of Section 2 of the said
Code to mean any person in whose favour a decree has been passed or
an order capable of execution has been made. In the present case,
prayer clause (b) of the Dispute has been granted. Hence, there is a
decree for possession in favour of the fourth Respondent which is
sng 24 appeal-705.12
capable of being implemented. Therefore, the execution application
filed by the fourth Respondent was maintainable.
19. We have perused several decisions relied upon by the
parties. We find that none of the decisions really assist the parties. The
case is crystal clear on facts.
20. Hence, we find no merit in the Appeal and the same is
accordingly dismissed with no orders as to costs.
21. The ad-interim or interim order which is operative in the
Appeal shall continue to operate for a period of eight weeks from today.
( A.A. SAYED, J ) ( A.S. OKA, J )
