Gujarat High Court
Porbandar Commercial Co-Op Bank ... vs S B Hindocha & Co & 2 on 29 June, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/6101/2008 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6101 of 2008
TO
SPECIAL CIVIL APPLICATION NO. 6106 of 2008
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PORBANDAR COMMERCIAL CO-OP BANK LIMITED....Petitioner(s)
Versus
S B HINDOCHA & CO & 2....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 2
MR HARDIK P MEHTA, ADVOCATE for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 29/06/2017
ORAL ORDER
1. In this group of the matters filed under Article 227 of the Constitution of India, the petitioner who is same in all the petitions, has challenged order dated 03.03.2008 passed by the learned Second Additional Senior Civil Judge, Porbandar, in different execution petitions.
2. It appears that the petitioner had filed Lavad Suit Nos.174/95, 179/95,180/95, 181/95, 182/95 and 183/95 before the learned Board of Nominees for recovery of different amounts from the respondents herein. Learned Board of Nominees allowed such suits and passed awards Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Aug 20 09:02:44 IST 2017 C/SCA/6101/2008 ORDER against the respondents for payment of suit amounts with interest to the petitioner. Such awards came to be confirmed by the Gujarat State Co-operative Tribunal ("the Tribunal") in the appeals preferred by the respondents. To execute the awards, the petitioner filed different execution petitions in the Court of learned Second Additional Civil Judge, Porbandar. In the execution proceedings, an objection was raised that the respondent No.2- original defendant No.2 in the lavad suit died on 01.09.1998 before the awards were made by the learned Board of Nominees on 13.01.1999 and therefore, the decree became nullity and could not be executed and therefore the execution petitions were not tenable. The other objection raised was that the respondent had filed revision applications which were still pending and till the final decision was arrived in revision applications, the execution petitions were not tenable. Learned Second Additional Civil Judge, Porbandar, has dismissed the execution petitions by impugned order by holding that the execution petitions are not tenable at law as the decree is nullity.
3. Learned Advocate Mr. Apurva Jani appearing for the petitioner submitted that the objection was that the Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Aug 20 09:02:44 IST 2017 C/SCA/6101/2008 ORDER decree passed against the original defendant No.2 was nullity as he died before passing the award and, therefore at the best, the decree against him may not be executable but the whole darkhast proceedings would not become remained unexecutable against the other defendants-respondent Nos.1 and 3 herein. Mr. Jani, submitted that the pendency of revision applications against the judgment passed by the Tribunal was also no ground to dismiss the execution proceedings and if there was no stay granted against the execution of decree, darkhast proceedings could have been proceeded against the respondent Nos.1 and 3. Mr. Jani, submitted that the learned Judge has committed serious error in dismissing the execution petitions against all the defendants by holding that the execution petitions are not tenable on account of death of the respondent No.2-original defendant No.2. He, therefore, urged to set aside impugned order.
4. Learned advocate Mr. Hardik Mehta appearing for the respondent Nos.1 and 3 submitted that since the revision applications were pending against the judgment of the Tribunal and since the respondent No.2-original defendant expired before passing the award in the suits, Page 3 of 6 HC-NIC Page 3 of 6 Created On Sun Aug 20 09:02:44 IST 2017 C/SCA/6101/2008 ORDER the Executing Court has not committed any error in dismissing the execution petitions by impugned order. He, therefore, urged not to interfere with the impugned orders in exercise of powers under Article 227 of the Constitution.
5. The Court, having heard learned advocates for both the sides, finds that undisputably, the awards made by the learned Board of Nominees in the lavad suits preferred by the petitioner were against all the respondents and to execute the award as decree, the petitioner preferred execution petitions being Special Darkhast No.5/03, Special Darkhast No.6/03, Regular Darkhast No.50/03, Regular Darkhast No.48/03, Regular Darkhast No.49/03 and Regular Darkhast No.47/03.
6. Pending the proceedings of such darkhasts before the Executing Court, objections were raised against the tenability of the darkhast on the grounds that before the award came to be made in the lavad suits, the respondent No.2-original defendant No.2 passed away and that the revision applications preferred by the respondents were pending. The darkhast Court has observed that since the respondent No.2 passed away on 01.09.1998 before the award were made on 13.01.1999, Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Aug 20 09:02:44 IST 2017 C/SCA/6101/2008 ORDER the decree were nullity. The Court finds that when the darkhast proceedings were against all the defendants, even if the decree against any one of the defendants was nullity, the darkhast proceedings could not become untenable against the other defendants but in fact, the darkhast proceedings could have been proceeded against the other defendants. Therefore, learned Judge has committed serious error in holding that since the decree against the respondent No.2-original defendant No.2 was nullity, the execution petitions in their entirety are not tenable. Learned Judge has also failed to exercise jurisdiction to proceed with the darkhast proceedings on the ground that the revision applications were pending. Simply because the revision applications are pending is no ground to hold that the execution petitions are not tenable. If there is any stay against the execution of the decree, the proceedings of the execution petitions will remain stayed but pendency of revision applications would not render the execution petition untenable. In such view of the matter, the impugned orders are required to be quashed and set aside.
7. For the foregoing reasons, the impugned orders dated 03.03.2008 passed by the learned Second Additional Civil Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Aug 20 09:02:44 IST 2017 C/SCA/6101/2008 ORDER Judge, Porbandar in above referred darkhasts are quashed and set aside.
8. The proceedings of the darkhasts are restored to file. The Court below shall proceed with the darkhasts (execution petitions) and decide the same as expeditiously as possible as lavad suits filed by the petitioner were of the year 1995 and the darkhast proceedings are of the year 2003. Rule is made absolute. Direct service is permitted.
(C.L.SONI, J.) PALLAVI Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Aug 20 09:02:44 IST 2017