Draft amendment allowed. [1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the petitioner herein – judgment debtor to quash and set aside the impugned order passed by the learned Executing Court – learned Principal Senior Civil Judge, Surendranagar dated 14.12.2011 passed below Exh.69 in Execution Application No.181 of 2001 by which the learned Executing Court has dismissed the said application submitted by the petitioner herein – original judgment debtor by which the petitioner herein – original judgment debtor prayed for an appropriate order directing the Liquidator of original plaintiff society to place on record the Resolution No.5 dated 30.09.2000 of the General Board of the plaintiff society and to pass an order of adjustment of the decree and consequently to quash and set aside the earlier order passed by the executing Court dated 11.02.2011 and to set aside the possession warrant.
[2.0] Facts leading to present Civil Revision Application in nut shell are as under:
[2.1] That respondent herein – original plaintiff – Jay Cooperative Housing Society Ltd. instituted Special Civil Suit No.9 of 1982 against the petitioner and one another – original defendants to remove the construction on the land admeasuring about 2000 sq. yards which belonged to the society and to direct them to hand over the possession of the same. That the said suit came to be dismissed by the learned trial Court by judgment and decree dated 22.02.1985. That the respondent herein – original plaintiff preferred Regular Civil Appeal No.68 of 1985 in the Court of learned Assistant Judge, Surendranagar and learned Appellate Court allowed the said Appeal and decreed the suit and directed the original defendants inclusive of the petitioner to hand over the possession of the suit property to the plaintiff and also directed them to remove the construction standing on the suit property. That the original defendants were also permanently restrained from entering in the suit property. It appears that thereafter Execution Application No.5 of 1992 was filed by the respondent herein – original plaintiff on behalf of the decree holder by some of the members of the society in the Court of learned Civil Judge (Senior Division), Surendranagar. However, the same came to be dismissed by order dated 12.09.1995 on the ground that the persons who filed execution application were not party to the suit and therefore, not entitled to seek execution of the decree. It appears that thereafter the decree holder society passed Resolution No.6 dated 01.11.1998 that in the case of the sale of the suit property for residential purpose, it should be first offered to the judgment debtor – original plaintiff No.1 Karsanbhai Ramjibhai – petitioner herein. It appears that in the meantime the custodian was appointed to conduct and manage the affairs of the original plaintiff – judgment creditor society, under the provisions of the Gujarat Cooperative Societies Act, 1961. That the custodian filed execution application No.181 of 2001 before the learned Executing Court. However, the same was resisted by the petitioner by submitting that in the meantime in the Annual General Meeting dated 30.09.2000 of the decree holder – plaintiff, Resolution No.5 has been passed not to initiate the proceeding in respect of the decree passed in favour of the society and that the said resolution was passed in presence of the custodian and thereby the decree holder waived and / or relinquished its right over the suit property. Therefore, it was the case on behalf of the petitioner herein – original defendant No.1 – judgment debtor that he become entitled to retain the possession of the suit property. It was also the case on behalf of the petitioner that the execution application filed by the custodian contrary to the Resolution No.5 dated 30.09.2000 would not be maintainable. It was also contended that as such the custodian was not authorized to take independent decision as the decree stood satisfied on account of Resolution No.5. That the learned Executing Court overruled the objections filed by the petitioner herein – original judgment debtor and by order dated 11.02.2011 allowed the execution application and directed to issue warrant for possession under Order 21 Rule 35 of the CPC. Being aggrieved and dissatisfied with the order passed by the Executing Court dated 11.02.2011 passed in Execution Application No.181 of 2001 to issue possession warrant, the petitioner herein – original judgment debtor preferred Civil Revision Application No.79 of 2011 before this Court and the learned Single Judge (Coram: Mr. Justice B.N. Mehta) by order dated 10.03.2011 dismissed the said revision application confirming the order passed by the learned Executing Court directing to issue possession warrant by observing that in absence of any adjustment certified by the Court, the Executing Court is justified in not recognizing the adjustment and in passing the order directing to issue possession warrant. The learned Single Judge also observed that with respect to various resolutions passed by the decree holder society more particularly the Resolution No.5 dated 30.09.2000, the learned Single Judge specifically observed that the Executing Court cannot go beyond the decree and therefore, even assuming for the sake of argument that the resolution was passed not to execute the decree, in absence of recording of the adjustment, as required under the law the decree holder is entitled to execute the decree.
[2.2] It appears that thereafter the petitioner submitted the application Exh.69 purported to be under Order 21 Rule 2(a) and (b) of the CPC by submitting that by Resolution No.5 dated 30.09.2000, the General Board of the judgment creditor society has taken a decision not to execute the decree and therefore, it was requested to direct the Liquidator to produce the same on record and to set aside the earlier order dated 11.02.2011 directing to issue possession warrant by passing an appropriate order of adjustment of the decree considering Resolution No.5 dated 30.09.2000. That thereafter the Executing Court dismissed the application Exh.69 against which the petitioner preferred Civil Revision Application No.153 of 2011 before this court and this Court by order dated 22.09.2011 allowed the said revision application and quashed and set aside the order dated 30.04.2011 passed by the learned Principal Senior Civil Judge (Senior Division), Surendranagar below Exh.69 in Execution Application No.181 of 2011 and restored the said application Exh.69 and directed the learned Executing Court to decide and dispose of the said application Exh.69 afresh. While allowing the said revision application remanding the matter to the learned Executing Court, the learned Single Judge also clarified that it will be open for both the sides to raise all contentions as may be available to them including the contention raised by the Liquidator / Society to the effect that resolution on which reliance has been placed by the applicant has been subsequently revoked as well as on maintainability of the application Exh.69.
[2.3] That thereafter by impugned order the learned Executing Court has dismissed the said application and has refused to set aside the earlier order dated 11.02.2011 issuing the possession warrant. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Executing Court below application Exh.69 in Executing Application No.181 of 2001, the petitioner herein – original judgment debtor – original defendant No.1 has preferred the present Civil Revision Application under Section 115 of the CPC.
[3.0] Shri Asim Pandya, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order passed by the learned Executing court dismissing the application Exh.69 is absolutely illegal and contrary to the provisions of Order 21 Rule 2(a) of the CPC. It is further submitted by Shri Pandya, learned advocate appearing on behalf of the petitioner that in view of the Resolution No.5 dated 30.09.2000 of the General Board of the plaintiff society taking a decision not to execute the decree, the learned trial Court ought to have passed order under Order 21 Rule 2(a) of the CPC and ought to have recorded the adjustment as provided under Order 21 Rule 2(a) of the CPC and consequently ought to have dismissed the execution application submitted by the custodian of the society.
[3.1] Shri Asim Pandya, learned advocate appearing on behalf of the petitioner has further submitted on the basis of the amendment in the present Civil Revision Application (which is allowed) that as the term of the custodian has expired, he has no further authority to proceed further with the present proceedings and/or even the execution proceedings. It is further submitted by Shri Pandya, learned advocate appearing on behalf of the petitioner – judgment debtor that once the Resolution No.5 dated 30.09.2000 was passed by the General Board of the society, the custodian could not have taken a contrary decision and/or contrary stand and/or could not have set aside the Resolution No.5 as the resolution passed by the General Board can be set aside only by the General Board and not the custodian. Therefore, it is requested to allow the present Civil Revision Application.
[4.0] Present Civil Revision Application is opposed by Shri Mehul S. Shah, learned advocate appearing on behalf of the respondent. It is submitted that as such the earlier order passed by the learned Executing Court directing to issue possession warrant in execution petition filed by the society – judgment creditor has been confirmed by the learned Single Judge by order dated 10.03.2011 in Civil Revision Application No.79 of 2011 and even the resolutions which have been relied upon by the petitioner had been dealt with by the learned Single Judge by specific observing that the Executing Court cannot go beyond the decree. It is submitted that the present application was only for recording the adjustment under Order 21 Rule 2(a) of the CPC and while considering the application under Order 21 Rule 2(a) of the CPC, the Executing Court is not required to consider any other objection inclusive of the authority of the custodian to proceed further with the execution petition and/or even the subsequent decision of the custodian to set aside the earlier resolution No.5 dated 03.09.1992. Therefore, it is submitted that the impugned order passed by the learned Executing Court is absolutely within four corners of Order 21 Rule 2(a) of the Code of Civil Procedure, 1908, which is not required to be interfered by this Court in exercise of powers under Section 115 of the CPC. It is submitted that as such the land belongs to the society which belong to all the members of the society which has been encroached upon and illegally taken by the petitioner and as per the judgment and decree passed by the learned Appellate Court, the plaintiff has to hand over the peaceful and vacant possession of the suit property which belong to the society and remove the construction. Therefore, it is submitted that the learned Executing court has not committed any error and/or illegality in passing the impugned order. Therefore, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that under the judgment and decree, the petitioner herein – original defendant No.1 – judgment debtor is required to hand over the peaceful and vacant possession of the suit property to the society, which belong to the society (all the members of the society) and he is also required to remove the construction on the disputed land. The judgment and decree passed by the learned Appellate Court has attained the finality. It appears that initially the petitioner got resolution of the society passed, that in case the disputed land in question is sold for residential purpose, it should be first offered to the petitioner herein. It appears that thereafter in the year 2000, the petitioner managed to get resolution No.5 dated 03.09.1992 passed under which according to the petitioner it was decided not to file the execution petition. It appears that in the meantime the custodian of the society was appointed and he has proceeded further with the execution petition and all the objections raised by the petitioner came to be dealt with by the Executing Court and the learned Executing Court by order dated 11.02.2011 in Execution Petition No.181 of 2001. Even the learned Single Judge of this Court in Civil Revision Application No.79 of 0211 also considered the case on behalf of the petitioner relying upon the resolutions of the society by observing that the Executing Court cannot go beyond the decree. The learned Single Judge confirmed the order passed by the learned Executing Court directing to issue possession warrant. It appears that thereafter the petitioner has submitted the application Exh.69 purported to be under Order 21 Rule 2(a) of the CPC by submitting that in view of the resolution No.5 dated 03.09.1992 of the General Board of the society – judgment creditor not to execute the decree, the execution petition is to be dismissed by recording adjustment. It was submitted by the custodian that earlier resolution No.5 dated 03.09.1992 of the society upon which the reliance has been placed by the petitioner has been set aside. However, it was the case on behalf of the petitioner that the custodian has no jurisdiction and/or authority either to proceed further with the execution petition and/or to pass a resolution and/or take a decision which is contrary to the resolution No.5. By passing a well reasoned order and considering the earlier order passed by this Court dated 10.03.2011 in Civil Revision Application No.79 of 2011, the learned Executing Court has dismissed application Exh.69 by not accepting the submission on behalf of the petitioner to adjust the decree relying upon resolution No.5 dated 03.09.1992.
[5.1] Now it is the case on behalf of the petitioner that the custodian has no jurisdiction and/or authority to proceed further with the execution petition as his term has expired and/or subsequent decision of the custodian to set aside the earlier resolution No.5 dated 03.09.1992 is illegal and therefore, to quash and set aside the impugned order is concerned, the same cannot be accepted. It is required to be noted that the application Exh.69 was purported to be under Order 21 Rule 2(a) of the CPC and in an application under Order 21 Rule 2(a) of the CPC, the executing Court is only required to consider whether the decree is adjusted or not and/or decree is satisfied or not and no other objections can be considered while considering application under Order 21 Rule 2(a) of the CPC. While considering the application purported under Order 21 Rule 2(a) of the CPC, the Executing Court is not required to consider whether the decision of the custodian to proceed further with the execution petition is just and proper or not and/or whether he can proceed further with the execution petition or not.
[6.0] Considering the aforesaid facts and circumstances and also considering the earlier order dated 10.03.2011 passed by the learned Single Judge in Civil Revision Application No.79 of 2011, no illegality has been committed by the learned Executing Court in dismissing the application Exh.69, which calls for interference of this Court in exercise of powers under Section 115 of the CPC.
[7.0] In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Notice discharged.
(M.R. Shah, J.) menon