Rasulkhan Kasamkhan Pathan vs Surat District Co.-op. Bank Ltd. and Another

Bankim N. Mehta, J.—The applicant by filing this Revision Application u/s 115 of the CPC has challenged the order passed by learned Third Joint Civil Judge (S.D.), Surat, camp at Bardoli, on 17.1.2001 below Exh. 26 in Special Darkhast No. 8 of 1998.

According to the applicant, he purchased the plots in question with superstructure on part of the plots from respondent No. 2 by a Registered Sale Deed dated 13.1.1998. The said plots were attached by the Court in execution of an award passed by the Registrar of Board of Nominees at Surat in execution petition, being Special Execution Petition No. B-8 of 1998 and hence he preferred application under Order 21 Rule 54 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC" for short) and the Executing Court after hearing the parties dismissed the application. Being aggrieved by the said decision, the applicant has preferred this Revision Application.

I have heard learned Advocate Mr. N.V. Gandhi for the applicant and learned advocate Mr. Gaekwad with Ms. V.D. Nanavati for opponent No. 1. Learned advocate for opponent No. 2 is absent.

Learned advocate for the applicant has mainly submitted that the Executing Court committed an error in not exercising the jurisdiction vested in it as it did not adjudicate the objection raised by the applicant. He has also submitted that the Certificate issued by the Registrar did not contain the schedule of the properties purchased by the applicant and therefore no attachment could have been effected by the Executing Court. He further submitted that in view of the decision in the matter of B.K. Krishna Murthy v. G.P. Rao reported in 1999 A.I.H. 397 another decision of this Court in the matter of Vora Mulla Taherali Mulla Akbaralli v. Majoranjan Barua reported in (1969) 10 GLR 950 Revision Application against the impugned order is maintainable and therefore the Revision Application is required to be allowed and the impugned order passed by the Executing Court is required to be set aside.

Per contra learned advocate for opponent No. 1 has submitted that as award was passed against opponent No. 2, the rights of the parties were crystallized and therefore opponent No. 2 had no right on the date of alleged transaction to sell the plots. He has also submitted that in view of Section 104 of the Gujarat Co-operative Societies Act (hereinafter referred to as "the Act" for short), the transaction of sale took place subsequent to issue of Certificate by the Registrar and therefore sale was void. He further submitted that the objections raised by the applicant were considered and adjudicated by the Executing Court and it cannot be said that the objections were not considered on maintainability ground only and therefore in view of the provisions of Order 21 Rule 58(4) of the Code of Civil Procedure, appeal is the only remedy against the impugned order. He has further submitted that provisions of Order 21 Rule 97 are pari materia to the provisions of Order 21 Rule 58(4) of the CPC and therefore as the impugned order is a decree, the only remedy is appeal and the Revision Application is not maintainable. Therefore, the present Revision Application is required to be dismissed.

It is not in dispute that opponent No. 1 filed a Suit for recovery of outstanding amount against opponent No. 2 in the Court of Registrar, Board of Nominees at Surat and after fullfledged trial, the award was passed by order dated 28.7.1997. It is also not in dispute that the District Registrar issued Certificate for recovery of money as required u/s 103 of the Act on 21.3.1998. It is also not in dispute that the execution proceedings were filed on the basis of such Certificate on 8.5.1998. The record indicates that the applicant purchased the properties in question by registered Sale Deed, in an auction held by opponent No. 2 on 13.10.1998. It appears that no consent to conduct the auction was obtained from opponent No. 1 who was the judgment creditor. Therefore, it clearly emerges that the property in question was purchased by the applicant subsequent to issue of Certificate by the Registrar u/s 103 of the Act. Section 104 of the Act provides that any private transfer, or delivery of or encumbrance or charge on the property made or created after the issue of the Registrar u/s 103 of the Act shall be null and void against the society on whose application the said Certificate was issued. In the instant case, Certificate u/s 103 of the Act was issued on the application of opponent No. 1 and the transfer took place after the issue of Certificate and therefore the transfer was null and void against opponent No. 1 Society. Therefore, the applicant - objector had no right to the property in question as claimed by him in the application filed before the Executing Court.

It also emerges that the Executing Court after considering the averments made in the application and the objections raised by the applicant came to the conclusion that the applicant had no right in respect of the property in question. The reasonings given by the Executing Court indicate that the objections were not simply discarded as not maintainable. On the contrary, after going into the merits of the objections, the Court adjudicated the objections and came to the conclusion that the applicant had no right in respect of the property in question. Therefore, it is difficult to accept that without considering the merits of the objections, the application was thrown away on the ground that it was not maintainable. Therefore, the impugned order passed by the Court was after adjudicating the objections filed by the applicant and therefore it was a decree.

Order 21 Rule 97 of CPC provides for procedure when holder of a decree for possession of an immovable property is resisted or obstructed by any person. Rule 98 provides for determination of questions and Rule 101 provides for the questions to be decided by the Court. Rule 103 provides that when an application has been adjudicated upon under Rule 98 or Rule 100, an appeal would lie as if it was a decree. In view of these provisions, provision of Order 21 Rule 97 are pari materia to provisions of Order 21 Rule 58 of CPC Therefore, the only remedy available would be appeal and not Revision u/s 115 of the Code of Civil Procedure.

Learned advocate for the applicant has relied on a decision in the case of B.K. Krishna Murthy v. G.P. Rao (supra) wherein the Karnataka High Court has held that order of Court rejecting the application under Order 21 Rule 58 amounts to final order and Revision would be maintainable against such order. It appears from the said decision that the Court without considering the merits of the claim decided the application under Order 21 Rule 58 of Code of Civil Procedure. In the present case as observed earlier, the application has been decided on merits after considering the facts of the objections and therefore this decision is not helpful to the applicant. The applicant has also relied on the decision of this Court in the matter of Vora Mulla Taherali Mulla Akbaralli v. Manoranjan Barua (supra). This Court has held that a person in possession of property in part performance of sale can still file an application under Rule 58. In the facts of the present case, this judgment cannot be made applicable.

In the decision of this Court in the matter of Pinjare Karimbhai Dedubhai Vs. Shukla Hariprasad Manishankar, this Court has laid down law with regard to revisional powers of the High Court u/s 115 of the Code of Civil Procedure. In view of the fact that the applicant has failed to satisfy this Court that the impugned order has a jurisdictional error committed by the Executing Court, in my view, in view of the express provision in Order 21 Rule 58(4) of the Code of Civil Procedure, the High Court cannot exercise the revisional power. In the decision of D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, the Hon''ble Supreme Court has laid down law with regard to the limitation of the High Court u/s 115 of the Code of Civil Procedure.

Learned advocate for opponent No. 1 has also relied on the decision of the Hon''ble Supreme Court in the matter of S. Rajeswari Vs. S.N. Kulasekaran and Others, wherein the Hon''ble Supreme Court has held that the obstruction to delivery of possession of land claimed by decree holder must be treated as a decree against which an appeal lay to the appellate Court and Revision Application would be barred u/s 115(2) of the Code of Civil Procedure. As observed earlier, the provisions of Order 21 Rule 97 and Order 21 Rule 103 of the CPC are pari materia, Revision Application would not be maintainable.

In view of above, in my view, the impugned order amounts to decree under Order 21 Rule 58(4) of the Code of Civil Procedure. The Revision Application filed against such order is not maintainable and therefore the Revision Application is required to be rejected.

It is stated by learned advocate for the applicant that during the pendency of this Revision Application, pursuant to the order passed by this Court, an amount of Rs. 2 lakh has been deposited by the applicant with the Registry of this Court and opponent No. 1 has withdrawn the same. Therefore, opponent No. 1 be directed to refund the amount with interest at the rate of 6% per annum to the applicant. In view of the fact that the Revision has been dismissed but the amount has been retained by opponent No. 1 bank since long and it has utilized the same, amount of Rs. 2 lakh with interest at the rate of 6% per annum from the date of withdrawal be refunded to the applicant within 4 weeks from today.

In view of above, the Revision Application stands dismissed with no order as to costs. Interim relief stands vacated.