1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original defendants-judgment debtors to quash and set aside the impugned order passed by the learned Judge, City Civil Court No. 17, Ahmedabad below Exh. 1 in Execution Petition No. 352/1998 by which the learned executing Court has rejected the objections raised by the applicants-original defendants-judgment debtors and has permitted the judgment creditor to take further steps for execution of the jungam warrant issued earlier in the execution proceedings.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. Respondent no. 1 instituted Summary Suit No. 5176/1996 against the applicants for recovery of Rs. 32,94,231.05 with interest. It appears that the learned City Civil Court passed decree for an amount of Rs. 26,72,000/-. It appears that thereafter further proceedings were initiated. However, the same are not referred as they are not necessary for deciding the present Civil Revision Application. It appears that
defendants-judgment debtor to execute the judgment and decree passed in Summary Suit No. 5176/1996. It appears that in the meantime, the applicants preferred Civil Miscellaneous Application No. 702/1998 under Order 37 Rule 4 of the Code of Civil Procedure for setting aside the ex-parte decree and/or restoration of the suit, which came to be dismissed by the learned City Civil Court against which Civil Revision Application No. 552/1999 was preferred before this Court and this Court dismissed the said Civil Revision Application. Thereafter, the applicants-original defendants-judgment debtors submitted the objections before the learned executing Court submitting that as the respondent no. 1 Bank was registered under the Gujarat Co-operative Societies Act, Summary Suit was not maintainable and the suit for recovery was required to be filed before the learned Board of Nominees and, therefore, the decree passed by the learned City Civil Court in Summary Suit is a nullity. By the impugned order, the learned executing Court has rejected the said objections and has permitted the judgment creditor to prosecute further with the execution proceedings and to take further steps for execution of the jungam warrant issued earlier. Being aggrieved and dissatisfied with the impugned order passed by the learned Judge, City Civil Court No. 17, Ahmedabad below Exh. 1 in Execution Petition No. 352/1998 dated 03/11/1999, the applicants-original defendants-judgment debtors have preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Shri S.B. Vakil, learned Senior advocate appearing on behalf of the applicants-original defendants-judgment debtors has vehemently submitted that as such the learned executing Court has not considered the objections raised by the applicants on merits and the contention on behalf of the applicants that as the respondent no. 1-Bank was registered under the provisions of the Gujarat Co-operative Societies Act, decree passed in Summary Suit No. 5176/1996 is a nullity. It is submitted that as such the said objections were required to be considered by the learned executing Court on merits.
4. Shri B.S. Patel, learned advocate appearing on behalf of the respondents-judgment creditors has submitted that at the relevant time when the applicants-original defendants- judgment debtors took loan from respondent no. 1-Bank, they were not the Members and, therefore, it cannot be said that the judgment and decree passed in the Summary Suit is without jurisdiction and/or is a nullity. However, he is not in a position to dispute that the learned executing Court has not dealt with and considered the contention on behalf of the applicants-original defendants-judgment debtors with respect to the judgment and decree passed in Summary Suit being nullity. Under the circumstances, he has stated at the bar that he has no objection if the impugned order passed by the learned executing Court is quashed and set aside and the matter is remanded to the learned executing Court for deciding the objections raised by the applicants-original debtors- judgment debtors on the aspect of the decree passed in Summary Suit, being nullity. However, he has requested to make suitable observation directing the learned executing Court to decide and dispose of the objections at the earliest as the judgment and decree is passed in the year 1996/1997 and the Execution Petition is of the year 1998.
5. Heard the learned advocates appearing on behalf of the respective parties at length. It is not in dispute that in the Execution Petition, the applicants-original defendants-judgment debtors raised specific objections submitting that the decree, which is sought to be executed, is a nullity. However, considering the impugned order, it appears that the learned executing Court has not considered the objections raised by the applicants-original defendants-judgment debtors on merits that the judgment and decree passed by the learned Judge, City Civil Court, Ahmedabad, which is sought to be executed is a nullity. When such objections were raised in the Execution Petition, the learned executing Court ought to have considered the same. It cannot be disputed that the objections raised by the applicants-original defendants-judgment debtors that the decree sought to be executed is a nullity can be raised even in the Execution Petition also. Even otherwise, as stated hereinabove, the learned advocate appearing on behalf of the respondents-judgment creditors has no objection if the impugned order passed by the learned executing Court is quashed and set aside and the matter is remanded to the learned executing Court for deciding the objections raised by the applicants-original defendants-judgment debtors on merits.
6. In view of the above, the present Civil Revision Application succeeds and the impugned order passed by the learned Judge, City Civil Court No. 17, Ahmedabad dated 03/11/1999 below Exh. 1 in Execution Petition No. 352/1998 is hereby quashed and set aside and the matter is remanded to the learned executing Court to consider the objections raised by the applicants-original defendants-judgment creditors raised in the said Execution Petition that the decree is a nullity. All the contentions, which may be available to the respective parties, are kept open, which be considered by the learned executing Court while considering the Execution Petition, which shall be dealt with and considered by the learned executing Court in accordance with law and on its own merits. Even the contention on behalf of the respondent that at the relevant time the applicants-original defendants-original debtors was not the Member of the Bank and, therefore, the Summary Suit before the learned City Civil Court was maintainable is also kept open, which be considered by the learned executing Court in accordance with law and on its own merits. In the facts and circumstances of the case, more particularly, when the Execution Petition is of the year 1997 the learned executing Court is hereby directed to decide and dispose of the objections raised by the applicants-original defendants- judgment debtors as stated hereinabove and the Execution Petition on remand at the earliest but not later than six months from today. Rule is made absolute to the aforesaid extent. No cost.
7. Registry is directed to send the writ of this order to the learned executing Court immediately but not later than 02/04/2012.
(M.R. SHAH, J.) siji