Bombay High Court
Panchavati Co.Operative Housing ... vs Saraswatiben Prataprai Bhatt And Ors on 29 November, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:35339
25-wp4361-2017.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4361 OF 2017
VAIBHAV
RAMESH
JADHAV
Digitally signed by
VAIBHAV RAMESH
JADHAV
Date: 2023.11.29
18:41:05 +0530
Panchavati Cooperative Housing Society
Ltd ... Petitioner
V/s.
Saraswatiben Prataprai Bhatt & Ors. ... Respondents
Mr. Yogeshkumar P. Yagnik for the petitioner.
CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 29, 2023
P.C.:
1. The petitioner is challenging order passed by the executing
Court dismissing execution application on the ground that in the
different suit filed by an individual flat purchaser and petitioner,
the suit was dismissed for default hence the society is not entitled
to seek conveyance of whole building.
2. The petitioner original plaintiff filed S.C. Suit No.1859 of
2012 seeking a relief of enforcement of obligations cast under the
provisions of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act,
1963.
3. The Trial Court, by judgment and decree dated 18 th March
2013, decreed the suit directing the defendants to execute deed of
conveyance within four weeks from the date of order, failing which
25-wp4361-2017.doc
the petitioner was granted liberty to get conveyance executed
through Officer of City Civil Court, Dindoshi, Mumbai.
4. Since the defendants failed to execute conveyance as per the
decree, the petitioner filed Execution Application No.68 of 2013.
The executing Court issued notice under Order 21 Rule 22 of the
Civil Procedure Code, 1908 but the judgment debtors were not
found at the given address. The executing Court relying on order
passed in different suit filed by the petitioner-society bearing
No.1859 of 2012, held that the society could not have filed
subsequent suit in view of bar under Order 9 Rule 9 of the Civil
Procedure Code, 1908. It was held that said suit was based upon
agreement with individual flat holder for flat No.7 and, therefore,
deed of conveyance cannot be executed in respect of whole
building.
5. The petitioner has, therefore, filed present writ petition.
6. This Court, on 26th April 2017, issued notice to the
respondents. Office remark dated 29th September 2017 indicates
that respondent No.1 to 10 are duly served as per bailiff report.
Despite service, none appears for respondent Nos.1 to 10.
7. On perusal of the reasoning assigned by the executing Court
for dismissing executing application, in my opinion, the reasoning
is bordering perversity. The reasoning is contrary to well settled
principle of law that it is not open for the executing Court to go
behind the decree. The decree passed by the City Civil Court on
18th March 2013 is clear and unambiguous. The rights conferred
by the decree can only be modified by an agreement between the
25-wp4361-2017.doc
parties certified by executing Court under Order 21 Rule 2 of the
Civil Procedure Code, 1908. Except such agreement certified under
Order 21 Rule 2 of the Civil Procedure Code, 1908, there is no
other power available with the executing Court to take cognizance
of any other event to take away effect of decree passed by
competent Court.
8. Passing of decree in another suit filed by the society cannot
extinguish rights created under decree dated 18 th March 2013.
Therefore, the executing Court was not justified in dismissing the
execution application. Hence, following order:
a) The impugned order dated 16th June 2016 passed in
Execution Application No.68 of 2013 is quashed and set
aside.
b) Execution application No.68 of 2013 is restored on the
file of executing Court.
c) The executing Court shall finally decide the execution
application within three months from the date of appearance
of the petitioner.
d) The petitioner shall appear before the executing Court
on 18th December 2023.
9. The writ petition stands disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
