Bombay High Court
Shri Ashok Nilkanthrao Gadbail vs Kailash Co-Op. Gruha Nirman ... on 16 March, 2017
Bench: A.S. Chandurkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Civil Revision Application No. 6 of 2017
Applicant : Ashok son of Nilkanthrao Gadbail, aged about
59 years, Retired, resident of 57, Azamshaha
Layout, Nagpur
versus
Non-applicants : 1. Kailash Cooperative Gruha Nirman Sanstha
limited, through its President Shri Sadashivrao
Jamodkar, c/o Narendra Vinayakrao Gorle, Plot
No. 10, Juna Subhedar Extension, Sharda
Chowk, Nagpur
2. Krishna Narayan Chavan, aged about 68
years, Retired, resident of Plot No. 38A, c/o
Nirmal Nursingh Home, Mire Layout, Near
Gurudeo Nagar, Ramana Maroti Road, Nagpur
3. Dr Mala w/o vijay Suryawanshi, aged Major,
Occ: business, resident of Plot No. 38A, c/o
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2
Nirmal Nursing Home, Mire Layout, Near
Gurudeo Nagar, Ramana Maroti Road, Nagpur
5. Purushottam Vithalrao Akre, Secretary,
Kailash Cooperative Gruha Nirman Sanstha
Limited, aged Major, resident of Near Dr
Shyamsundar Shinde, Bapu Nagar, Umrer Road,
Raghuji Nagar, Nagpur
6. Gopichand Shravan Kakde, aged major,
Retired, resident of Plot No. 40, Mire Layout,
Near Gurudeo Nagar, Ramana Maroti Road,
Nagpur
Shri S. A. Kalbande, Advocate for applicant
Shri A. S. Jaiswal, Senior Advocate with Shri A. S. Joshi, Advocate for
non-applicant nos. 2 to 4
Coram : A. S. Chandurkar, J
Dated : 16th March 2017
PC
1.
In view of notice for final disposal issued earlier, the
learned counsel for the parties have been heard at length.
2. The applicant who is original disputant in Cooperative Case
No. 197 of 1990 is aggrieved by the order passed in Misc. Civil Appeal
No. 139 of 2016 whereby said appeal has been allowed and the order
passed by the Executing Court below Exhibit 48 has been set aside.
3. The facts relevant for adjudicating the present civil revision
application are thus -
According to the applicant, he had purchased plot no. 39 by
registered sale dated 7.10.1986 from the non-applicant no. 1 Society.
This plot was admeasuring 1500 square feet and it was purchased for a
consideration of Rs. 12,000/-. Non-applicant nos. 2 to 4 had also
purchased separate plots on the same day from the non-applicant no. 1
Society. According to the applicant, the President and Secrtary of the
Society made various changes in the layout due to which the applicant
was likely to receive lesser area than the area purchased by him. On that
basis, he filed the aforesaid dispute under Section 91 of the Maharashtra
Cooperative Societies Act, 1960. The relief claimed in the aforesaid
dispute was that nos-applicant nos. 2 to 4 be evicted from plot no. 39 and
possession of the same be given to the applicant. A declaration was also
sought that documents, if any, executed by non-applicant nos. 2 to 4 with
regard to said plot be declared as null and void.
4. The Cooperative Court after considering the entire evidence
on record came to the conclusion that by virtue of the revised layout map
that was sanctioned by the Nagpur Improvement Trust, the respective
parties were entitled for possession of their respective plots as per said
map. After recording the finding that the applicant was not seeking
removal of encroachment, the Cooperative Court by order dated
10.9.2009 held that the applicant was entitled for possession of plot no.
39 as per the revised layout map. The Society was directed to execute the
correction deed and also refund the adjusted amount to the applicant.
The applicant challenged the aforesaid award before the Appellate Court
and the Appellate Court confirmed the findings of the Cooperative Court
and dismissed the appeal.
5. In terms of the aforesaid award, the applicant instituted
execution proceedings in the Civil Court. The objection raised by the non-
applicant nos. 2 to 4 to the said proceedings was rejected on 11.2.2015.
Subsequently, the applicant filed draft Correction deed under provisions
of Order XXI, Rule 34 of the Code of Civil Procedure, 1908 (for short,
"the Code") . This application was opposed by non-applicant nos. 2 to 4.
The Executing Court by its order dated 21.4.2016 rejected the said
objection. Being aggrieved, non-applicant nos. 2 to 4 filed an appeal
challenging the aforesaid order. By the impugned order, the aforesaid
appeal has been allowed and the order passed by the Executing Court
below Exhibit 48 has been set aside.
6. Shri S. A. Kalbande, learned counsel for the applicant
submitted that the Appellate Court travelled beyond the scope of the
appeal that was filed under provisions of Order XLIII Rule 1 (i) of the
Code and proceeded to observe that the award passed by the Cooperative
Court was vague in nature. According to him, the Cooperative Court after
considering the entire evidence had held in favour of the applicant and,
therefore, the Appellate Court could not have held that said award could
not be executed. The applicant had filed a draft Correction Deed under
provisions of Order XXI, Rule 34 of the Code and the Executing Court had
rightly rejected the objection raised by non-applicant nos. 2 to 4.
According to him, the appeal ought to have been decided by keeping the
provisions of Order XXI Rule 34 of the Code in mind. For said purpose,
he relied upon the judgment in the case of Rasika w/o Krishnadas
Tulsidas & ors v. Mount Mary Vaikunta Coop. Housing Society
Limited & ors reported in 2003 (2) Mh. L. J. 420. It was then submitted
that the earlier objection raised by non-applicant nos. 2 to 4 below
Exhibit 21 had been rejected and, therefore, the subsequent objection
based on the same lines could not have been agitated. In this regard he
placed reliance on Barkat Ali & anr v. Badrinarin (Dead) by LRs
reported in (2008) 4 SCC 615. He, therefore, submitted that decree as
passed was liable to be executed and he placed reliance on the decision in
Satyawati v. Rajinder Singh & anr reported in (2013) 9 SCC 491.
7. Shri A. S. Jaiswal, learned Senior Advocate for non-applicant
nos. 2 to 4 supported the impugned order. According to him, the
Cooperative Court had clearly recorded a finding that there was no
encroachment committed by the non-applicant nos. 2 to 4. He submitted
that this finding was confirmed by the Appellate Court and therefore there
was no question of placing the applicant in possession of any property.
He submitted that an injunction sought by the applicant seeking to
restrain the non-applicant nos. 2 to 4 from making any construction was
refused by the Cooperative Court. According to him, the applicant was
seeking possession by filing the execution proceedings and the Appellate
Court rightly set aside the order passed by the Executing Court. He,
therefore, submitted that the appeal was rightly decided within the
permissible scope and therefore, there was no merit in the revision
application.
8. I have heard learned counsel for the parties and perused the
documents filed on record. Before considering the challenge as raised, it
would be necessary to refer to the Award passed by the Cooperative Court
in the proceedings filed by the applicant. The Cooperative Court in
paragraph 11 of its Award has noted that the grievance with regard to
encroachment having been committed by non-applicant nos. 2 to 4 was
withdrawn by the disputant during the course of arguments and it was
admitted that there was no encroachment by non-applicant nos. 2 to 4.
Thereafter reference is made to the clause in the sale deed by which it
was made clear that the layout map was subject to changes as per the
sanction and approval of the Nagpur Improvement Trust. Thereafter on
the basis of the revised layout map, it is observed that plot no. 39 was
shown to exist. In paragraph 15 of the Award it is held that the
Correction Deeds were executed by the Society in favour of non-applicant
nos. 2 to 4 on the basis of revised layout map. Ultimately, in paragraph
17 of the Award, it was held that the disputant was entitled for possession
of plot no. 39 as shown in revised layout map and the Society was bound
to execute necessary correction deed in favour of the disputant. The
Society was also directed to refund the adjusted amount as per the area of
plot no. 39 to the applicant.
The Appellate Court confirmed these findings in the appeal
filed by the applicant. It noted that the applicant was entitled only to the
area of plot as per the sanctioned map and he was not entitled to seek the
relief of eviction of non-applicant nos. 2 to 4. The appellate Court,
therefore, confirmed the aforesaid Award.
9. In the execution proceedings the applicant filed draft
correction deed in terms of provisions of Order XXI, Rule 34 of the Code.
The same was objected to by non-applicant nos. 2 to 4. The Executing
Court by order passed below Exhibit 48 rejected these objections. The
scope of an appeal challenging the order passed under Order XXI, Rule
34 of the Code has been explained in the decision in R. Tulsidas (supra).
It has been held that the scope of such appeal would be restricted to the
order relating to the objection to the draft sale deed. The Appellate Court
while exercising its jurisdiction under Order XLIII, Rule 1 (i) of the Code
cannot travel beyond the purview of its appellate jurisdiction. If the
order passed by the Appellate Court is perused, point no. 1 has been
framed thus -
"Whether the appellant has proved that the
respondent no. 1 society illegally changed
the layout plan and illegally allotted portion
of plot to the R. Nos. 3 to 6 ?"
Thereafter the Appellate Court proceeded to observe that if the decree
was vague, the Executing Court could refer to the pleadings of the parties;
evidence on record and reasons in the judgment. It thus observed that the
main dispute was as regards identification of the plots and their
boundaries and the decree was vague in this respect. It is on that basis
that the order of the Executing Court came to be set aside.
10. From the order passed by the Appellate Court, it can be seen
that the Appellate Court has entered into the merits of the findings
recorded by the Cooperative Court and has concluded that the Award as
passed was vague as the dispute related to the identification of plots and
boundaries. However, if the Award passed by the Cooperative Court is
perused, it is held in clear terms that the applicant is entitled for
possession of plot no. 39 as per the revised layout map that is approved
by the Nagpur Improvement Trust. A direction is also issued against the
Society to execute necessary correction deed of plot no. 39 in terms of
the revised layout map. It is on the basis of this Award that the draft
correction deed came to be submitted by the applicant. The executing
court having rejected the objection raised by non-applicant nos. 2 to 4,
the Appellate Court could have examined the challenge to said order in
the light of the Award passed by the Cooperative Court. On reading the
entire Award, it cannot be said that the directions issued while partly
allowing the dispute were vague in nature. After considering the entire
evidence on record and after holding that there was no question of
removal of any encroachment, the relief granted was as regards
entitlement of possession of the applicant to plot no. 39 as per the
revised layout map. The Appellate Court, therefore, committed an error
by not considering the challenge to the order passed by the executing
court in the light of provisions of Order XXI, Rule 34 of the Code along
with the Award that was sought to be executed. As the Appellate Court
has proceeded by considering as to whether the said Award can be
executed after removing non-applicant nos. 2 to 4 from possession which
aspect was not required to be gone into, I find that the appeal deserves
to be reconsidered by the Appellate Court in the light of the scope of
provisions of Order XXI, Rule 34 of the Code.
11. Insofar as the question of res judicata is concerned, it is to be
noted that insofar as the application filed below Exhibit 21 is concerned,
non-applicant nos. 2 to 4 have prayed for the execution proceedings to be
dismissed. This objection came to be rejected on 11.2.2015. Even if the
execution proceedings continue against non-applicant nos. 2 to 4 what is
to be executed is the Award passed by the Cooperative Court. In that
view of the matter, it cannot be said that non-applicant nos. 2 to 4 were
precluded from raising objection to the draft correction deed as per
Exhibit 48. Ultimately, what is to be executed is the award passed by the
Cooperative Court and objection, if any, has to be considered in that light.
12. In view of the aforesaid discussion, following order is passed :
(1) Order passed by the Appellate Court dated 19.10.2016 in Misc.
Civil Appeal No. 139 of 2016 is quashed and set aside. The proceedings
are restored to file of the Appellate Court for their reconsideration in
accordance with the observations made and the law referred to
hereinabove.
(2) The Appellate Court shall decide the appeal on its own merits after
taking into consideration the Award passed by the Cooperative Court.
(3) The parties shall appear before the Appellate Court on 3.4.2017.
The appeal be decided expeditiously by the Appellate Court.
(4) Revision is partly allowed in aforesaid terms. No costs.
A. S. CHANDURKAR, J
joshi
