1. RULE. Shri Jayraj Chauhan, learned advocate waives service of notice of rule on behalf of respondent no. 1 and Shri S.P. Majmudar, learned advocate waives service of notice of rule on behalf of respondent no. 2.
2. In the facts and circumstance of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today.
3. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-third party in execution proceedings to quash and set aside the impugned order dated 13/01/2012 below Exh. 49 in Special Execution Petition No. 300/2002 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara.
4. The facts leading to the present Civil Revision Application in a nutshell are as under;
4.1. Respondent no. 1-original plaintiff-judgment creditor filed Summary Lavad Suit No. 158/2000 in the Court of learned Board of Nominees, Vadodara against respondent no. 2-original defendant no. 1 and others. The said suit came to be decreed by the learned Board of Nominees by judgment and order dated 30/04/2001 and the award was sought to be executed by filing Special Execution Petition No. 300/2002. In the said Execution Petition respondent no. 1-judgment creditor submitted the application, Exh. 47 requesting to issue jungam warrant against the property of the applicant and others. The said application was objected by the applicant by raising objection at Exh. 49. It was submitted on behalf of the applicant that the Execution Petition against the applicant is not maintainable as no decree/award has been passed against him. It was further submitted that as such prior to filing of the suit the applicant had already resigned as Director of the Company (original defendants nos. 1 and 3) i.e. on 30/03/1999 and intimation of resignation was also given to respondent no. 1-Bank. It appears that by impugned order the learned executing Court has set aside the objections raised by the applicant and has directed to issue the jungam warrant against the property of the applicant and others. Being aggrieved and dissatisfied with the impugned order passed by the learned executing Court below Exhs. 47 and 49, the applicant has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
5. Shri B.H. Brahmbhatt, learned advocate has appeared for Shri Parikh. Shri Brahmbhatt has reiterated what was submitted in the application, Exh. 49. It is submitted that when the applicant had already resigned as Director of original defendants nos. 1 and 3 - Company much prior to filing of the suit and no decree/award has been passed against the applicant and even the applicant was not party to the suit, Execution Petition against applicant is not maintainable and the impugned order passed by the learned executing Court directing to issue jungam warrant against the applicant deserves to be quashed and set aside.
6. Shri Chauhan, learned advocate appearing on behalf of respondent no. 1-judgment creditor is not in a position to satisfy the Court how the Execution Petition against the applicant is maintainable and/or can be executed against the applicant and, therefore, he has requested to make suitable observation that the present order shall be confined to the applicant only without prejudice to the rights and contention of respondent no. 1-judgment creditor to recover the amount pursuant to the impugned order passed by the learned executing Court, which has been passed against other persons also.
7. Shri Jadeja, learned advocate appearing for S.P. Majmudar, learned advocate appearing on behalf of respondents nos. 2 to 4 has requested to pass an appropriate order considering the facts and circumstances of the case.
8. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that as such the judgment and award has been passed against respondents nos. 2 to 4. It appears that the applicant was a Director of original defendants nos.1 to 3 and, therefore, he was sought to be joined as party in the Execution Petition and the decree passed against the aforesaid two Companies was sought to be executed against the applicant and, therefore, respondent no. 1-judgment creditor submitted the application before learned executing Court to implead the applicant as a party to the execution proceedings and to issue jungam warrant against the applicant and the said application has been allowed. It is to be noted that as such the applicant is an ex Director, who had already resigned as a Director of original defendants nos. 1 and 3-Company, much prior to the filing of the suit i.e. on 30/03/1999. Even the judgment and the award has been passed subsequently i.e. 30/04/2001. It is also required to be noted that the applicant is neither party to the Lavad suit nor any decree and/or any award has been passed against him. It is also required to be noted that as such intimation with respect to resignation as the Director of original defendants nos 1 and 3 on 30/04/2001 was already intimated to the Bank, still the Bank applied to join the applicant as party to the Execution proceeding.
9. In view of the aforesaid facts and circumstances of the case, the decree passed against the original defendants of the Lavad Suit cannot be executed against the applicant. Under the circumstances, the learned executing Court has materially erred in directing to issue jungam warrant against the applicant. Under the circumstances, the impugned order deserves to be quashed and set aside.
10. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned order passed by the learned executing Court i.e. the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara dated 13/01/2012 below Exh. 47 is hereby quashed and set aside so far as the applicant is concerned. However, it is observed that the impugned order is set aside only qua the applicant, who has challenged the impugned oder before this Court and if the said order is not challenged by other persons against whom the order is passed below Exh. 47, it will be open for respondent no. 1-judgment creditor to execute the same order in accordance with law and on its own merits, which shall be considered in accordance with law and on its own merits. Rule is made absolute to the aforesaid extent. No cost.
(M.R. SHAH, J.) siji