The Southern Nagpur Co-Op. ... vs Shri. Ganpati S/O. Yadarao ...
2017 Latest Caselaw 6698 Bom

                                               1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



Civil Revision Application  No. 14 of 2016 

Applicant                :          The Southern Nagpur Cooperative Housing

                                    Society Limited,  through its Administrator

                                    Shri Ravindra B. Moon, aged about 53 yrs

                                    Occ: service, resident of Bhagwan Nagar,

                                    Bank Colony, Moreshwar Apartment, 

                                    Nagpur

                                    versus

Respondent               :          Ganpati son of Yadarao Kumbhare

(original Disputant), aged about 85 years,

Occ: Retired, resident of Data Niwas, Model

Mill Road, District Nagpur

Shri A. A. Mardikar, Advocate for applicant

Shri V. R. Choudhari, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 1st September 2017

Oral Judgment

1. Heard. Admit. Heard finally by consent.

2. This revision application challenges the order passed on 16 th

October 2015 by the District Judge, Nagpur in Misc. Civil Appeal No. 120

of 2013. By this order, the learned District Judge upset the order dated

27th April 2011 passed below objection application (exhibit 11) filed in

the execution proceedings initiated by the respondent/original disputant.

3. In the year 1991, a Dispute was raised by the respondent

before the Cooperative Court, Nagpur. In this Dispute, the relief that was

sought by the respondent was that the applicant Society be directed to

allot to him plots no. 3 and 4 of the Society's Layout, he being member of

the Society and in view of the arrangement between the Society and its

members. In the year 1996, the respondent sought an amendment in the

Dispute Application, which was allowed. By virtue of this amendment, the

respondent was permitted to let his claim be for allotment of a different

plot, Plot No. 5A instead of plots no. 3 and 4. The Dispute was strongly

resisted by the applicant. However, on merits of the case, the Cooperative

Court allowed the dispute and passed an Award dated 31.3.2000, thereby

directing the applicant to allot Plot No. 5A to the respondent.

4. The decree of the Cooperative Court was challenged in

appeal before the Cooperative Appellate Court. The appeal was also

dismissed. Thereafter a writ petition was preferred by the applicant being

Writ Petition No. 4441 of 2002. This writ petition was dsposed of by this

Court on 7th October 2006 after noticing that an objection has been

preferred by the applicant to the execution of decree. Thus, this Court

relegated the present dispute between the parties to the executing court.

The objection application was filed as per exhibit 11. It was allowed by

the executing court on 27th April 2011 against which an appeal was

preferred by respondent which was allowed by the 1 st appellate court, the

Court of District Judge-9, Nagpur 16 th October 2015. Thus, the

judgment-debtor became obliged under the law to abide by the decree

and allot Plot No. 5A to the respondent. But, it was not to be and,

therefore, revision application has been preferred by the applicant, which

is the present Civil Revision Application.

5. According to Shri Mardikar, learned counsel for the

applicant, the decree is unexecutable since Plot No. 5A is not in existence.

He also submits that this property (plot no. 5A) has been sold by

registered sale deed executed in the year 1994 and the Society is no

longer the owner of this Court. He further submits that evidence was led

before the executing court by the parties and all the facts have been

admitted by the parties and, therefore, the 1 st appellate court ought to

have dismissed the appeal. Shri Choudhari, however, does not agree. He

submits that even if some construction, according to the case of the

applicant, has been made, that construction is illegal and it has been held

to be so by the 1st appellate court and, therefore, there would be no

difficulty in bringing down that construction and restoring the original

status of Plot No. 5A. Thus, according to him, the decree is well

executable. As regards the sale deed executed on 9 th June 1994, Shri

Choudhari submits that no such objection was raised before the executing

court and, therefore, now it cannot be allowed to be raised here.

6. On going through the paper book including the award passed

by the cooperative court, objection application, order passed by the

executing court on application (exhibit 11) and the impugned order, I

find that there is a great substance in the argument of learned counsel for

the respondent and no merit in the argument of learned counsel for the

applicant.

7. It is the case of the applicant that a proposal was moved by

the applicant Society before the Municipal Authorities well before the year

1985 for amalgamation of plots no. 4,5 and 5A and also for grant of

permission for constructing a community hall. It is the further case of the

applicant that this proposal was sanctioned by the Municipal Corporation

and building permit was also issued by it following which, by the end of

the year 1985, plots no. 4, 5 and 5A had been consolidated and

construction of community hall over such consolidated piece of land was

also completed. So, in the year 1985 itself, plot no. 5A was not available

for allotment; it had no separate existence and identity. If this is the case

of the applicant, I do not understand as to what prevented the applicant

from bringing all these material facts to the knowledge of the respondent

as well as the cooperative court which passed the decree on 31.3.2000

and which goes to the root of the whole issue. It appears that the

applicant silently watched the proceedings before the cooperative court,

allowed the cooperative court to pass a decree, probably knowing well

that eventually the respondent would not get in his hand anything and

the applicant would not be required to pass on the property to the

respondent. As if this was not enough, the applicant also maintained

complete silence before the cooperative appellate court. Even during the

pendency of appeal and till its final disposal, the applicant did not utter a

single word about plot no. 5A losing its separate identity way back in the

year 1985. The applicant also did not voluntarily abide by the decree

dated 31.3.2000 which was confirmed by the cooperative appellate court.

After the appeal was dismissed on 20 th April 2002, as a law-abiding citizen

and responsible member of the larger society, the applicant was under a

duty at least to the larger society, if not to the respondent, to uphold the

law of the land. But, the applicant did not do so. The applicant did not

allot plot no. 5A to the respondent and if it had been already

amalgamated into some other plot, the applicant also did not take any

efforts in de-segregating plot no. 5A from the other plots. Thus, the

applicant created a situation wherein the respondent was compelled to

file execution proceedings against the applicant and it was at this stage,

which arose some time in the year 2002, the applicant suddenly raked

up the issue which it was holding so close to its heart for about eleven

years. At this point of time, the applicant for the first time raised an

objection about inexecutability of the decree, for, plot no. 5A had lost its

separate identity way back in the year 1985.

8. All the facts discussed, therefore, only show that the

applicant has no respect for the law and somehow or the other, it wants

to deprive the respondent of the fruits of the decree. If the effort of the

applicant is allowed to succeed, it would mean that the applicant has been

permitted to take advantage of its own wrong. This Court being a Court

of law and equity, would never countenance such a situation and would

not give shelter to a person who commits wrong and tries to derive

advantage out of his own wrong. In the case of Union of India & ors v.

Major General Madan Lal Yadav reported in (1996) 4 SCC 127, the

Hon'ble Supreme Court while referring to the principle propounded by the

Latin maxim nullas commondum capere potest de injuria sua propria

meaning, no man can take advantage of his own wrong, held that the

maxim is based on elementary principle and is fully recognized in Courts

of law and of equity, and, indeed, admits of illustration from every branch

of legal procedure. The conduct of the applicant here disentitles him to

any relief and as a matter of fact, amounts to abuse of process of law.

9. This reminds me of the situation which obtained way back in

1872. It was assessed by the Privy Council in terms that the difficulties of

a litigant begin when he obtains a decree. The situation which a litigant

like the applicant faced in the past continues even today with little change

in it. The respondent, I am sure, must even now be thinking that it is

easier to obtain a decree, but it is a Herculean task to execute it. When a

decree attains finality and rights of the parties are crystalized and settled,

there remains nothing for the judgment-debtor to a decree to avoid the

obedience to the decree. He must bow before the law and voluntarily

comply with the directions given in the decree and if he does not, the

least that could be expected of him is to not raise any such objection to

its execution as is founded upon fraud, his own misconduct or frivolity or

the likewise. After all, just as every material thing and relations of

material thing has shelf life, every dispute between the parties, one must

realize, also has its own shelf life and the only difference between the

expiry period of material things and relations of material things on one

hand and the dispute arising from inter se relations between the human

beings on the other, is that the expiry date of the former is known the

day they take birth and expiry date of the latter becomes known only

when the adjudication of the dispute by a competent court attains finality.

So, a judgment-debtor who owes a duty to the larger society to respect

law by his abidance by the terms of a decree must know that after expiry

of the shelf life of the dispute, there is no way for him to rekindle the

dispute and somehow or the other try to keep the flame alive. In the case

of Satyavati v. Rajender Singh & anr reported in (2013) SCC 491, the

Hon'ble Supreme Court has observed that the decree-holders must enjoy

the fruits of the decree obtained by them in an expeditious manner and

duty is cast upon the courts in India to be careful to see that processes of

the Courts of law of procedure are not abused by the judgment-debtors

and the Courts of law do not play into hands of the judgment-debtors in

defrauding the creditors who have obtained the dcrees in accordance with

their rights.

10. Now, coming to the question of losing of identity of Plot No.

5-A, I must say that this is not something which is irreversible. A change

in things is irreversible when the change cannot be undone and things

cannot be restored to their original shape or form or structure, as it

happens when sugar dissolves in water. Such irreversibility is not there

when two pieces of lands are combined together by a paper order. Here

the amalgamation of the plot in question has taken place with two other

plots under an administrative order. Such amalgamation is always open

for reversal and any of the three plots can be detached from the rest of

the plots. This can be done even under the decree of the Court of law

and in the instant case, this could have been by the Cooperative Court at

the time of grant of decree had this fact been brought to its notice in time.

Since it was not, now the applicant would have to do it by seeking

appropriate order of the competent authority. If the applicant does not

show any willingness and is reluctant to take necessary steps, the law will

come to the rescue of the respondent and compel the applicant to do

everything that is necessary for desegregation of plot no. 5-A. Same

principle would apply to the construction made on this property. Even

otherwise, this construction has been found by the 1 st appellate court to

be illegal. Therefore, this construction will also have to be pulled down

by the applicant and if it does not do so, the spirit of law will always

ensure that the law of the land is respected.

11. About the transfer of Plot No. 5-A by sale deed executed in

June 1994, I must say that there is nothing in the objection application

vide exhibit 11 to give even an inkling of transfer of plot no. 5A and its

amalgamation with other plots. There is no averment made in this

application about the transfer of said plot. It was not a subject-matter of

debate and adjudication before the executing court. Therefore, this Court

exercising revisional powers with a view to examine the legality, material

irregularity or correctness of the impugned order cannot permit the

applicant to take such a plea at this stage. Then, one does not know

whether such a sale deed was really executed or not, the reason being

that had it really been executed, the applicant would surely have

incorporated pleadings about the same in its objection application vide

exhibit 11. This has not been done so and, therefore, the argument made

in this regard cannot be accepted.

12. In the result, I find that there is nothing illegal, improper or

irregular about the impugned order. I do not notice any perversity in the

impugned order and, therefore, this revision application deserves to be

dismissed with costs which, in my opinion, must be heavy given the

attitude of the applicant in respect of which I have already made my

detailed comments in the foregoing paragraphs.

13. Revision application is dismissed with costs. In addition,

exemplary costs of Rs. 25,000/- are imposed on the revision applicant to

be paid to the respondent.

S. B. SHUKRE, J

joshi