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2015 DIGILAW 196 (ORI)

Utkal Cooperative Banking Society Limited v. Rabindra Kumar Nayak

2015-03-25

SANJU PANDA

body2015
JUDGMENT : Sanju Panda, J. 1. Petitioner in this application has challenged the Order Dated 23.7.2014 passed by Learned District Judge, Bhubaneswar in C.R.P. No. 5 of 2013 while dismissing the civil revision confirming the Order Dated 2.3.2013 passed by Learned Civil Judge (Jr. Divn.), Bhubaneswar in Interim Application No. 66 of 2001 arising out of Execution Case No. 13 of 1999 wherein the Court below, dismissed the Interim Application filed under Section47 of the Code of Civil Procedure to dismiss the execution case. The facts leading to the present case as narrated in the application are as follows:- The present Opp. Parties were working in the office of the present Petitioner after being appointed by the Society in the month of January, 1997. The Committee of Management of the Petitioner-Society was replaced by an administrative Order Dated 7.2.1997 passed by the Registrar of Co-operative Societies & as per the resolution of the Board of Management to terminate the services of the Opp. Parties, they were not allowed to work from 15.3.1997. Accordingly the present Opp. Parties as Plaintiffs filed T.S. No. 67 of 1997 before the Learned Civil Judge (Jr. Divn.), Bhubaneswar for permanent injunction impleading the present Petitioner as Defendant. The Petitioner appeared in the suit & raised the question of maintainability of the suit in view of Section 121 of the Orissa Co-operative Societies Act, 1962. 2. The Trial Court by Judgment dated 16.5.1998 decreed the suit in favour of the Plaintiffs & also answered the specific issue No. 2 regarding maintainability of the suit in favour of the Plaintiffs. Challenging the Judgment & decree dated 16.5.1998 as well as 25.6.1998 Petitioner has filed Title Appeal No. 23 of 1998 before the Learned District Judge, Bhubaneswar. The said Title Appeal was dismissed for non-prosecution on 4.12.1998. Thereafter an application was filed by the Petitioner under Order, 41 Rule 19of the C.P.C. which was registered as Misc. Case No. 152 of 1998. The said misc. case was also dismissed for non-prosecution. Petitioner challenging the Judgment & decree of the suit filed O.J.C. No. 8051 of 1999 before this Court which was dismissed on 29.9.2011 as the Petitioner has already availed the alternative remedy under the statue by filing an appeal. The Petitioner cannot avail two forums challenging the very same order. 3. The said misc. case was also dismissed for non-prosecution. Petitioner challenging the Judgment & decree of the suit filed O.J.C. No. 8051 of 1999 before this Court which was dismissed on 29.9.2011 as the Petitioner has already availed the alternative remedy under the statue by filing an appeal. The Petitioner cannot avail two forums challenging the very same order. 3. While the matter stood thus decree holders have filed Execution Case No. 13 of 1999 to execute the decree. In the said execution case Petitioner filed an application under Section 47 of the C.P.C. which was registered as Interim Application No. 66 of 2001 to dismiss the execution case & not to proceed with the execution of the decree passed in T.S. No. 67 of 1997. The Learned Civil Judge (Jr. Divn.), Bhubaneswar by Order Dated 2.3.2013 dismissed the interim application. Challenging the above order Petitioner has filed C.R.R. No. 5 of 2013 before the Learned District Judge, Bhubaneswar. The Revisional Court by Order Dated 23.7.2014 dismissed the Civil Revision & directed the Learned Civil Judge (Jr. Divn.), Bhubaneswar to dispose of. Execution Case No. 13 of 1999 within two months. The Petitioner has filed the present Civil Miscellaneous Petition challenging the aforesaid orders. 4. Learned Counsel for the Petitioner submits that in view of Section 121 of the Orissa Co-operative Societies Act, 1962 the suit is not maintainable hence the impugned order need be interfered with. In support of his contention he has relied on the decision of this Court reported in 2011 (1) OLR 1046 , Central Bank of India & Anr. v. Ram Chandra Sahoo & Ors. Learned Counsel for the Opp. Parties while supporting the impugned order submits that since the Court below has rightly passed the impugned order so interference with the impugned order need not be required. In support of their contention they have relied on the decisions reported in 1986 (II) OLR 566, M/s. Bishnu Mohan Mallik V. Dhruba Naik & 2012 (I) OLR (SC) 116, Kanwar Singh Saini V. High Court of Delhi. 5. In support of their contention they have relied on the decisions reported in 1986 (II) OLR 566, M/s. Bishnu Mohan Mallik V. Dhruba Naik & 2012 (I) OLR (SC) 116, Kanwar Singh Saini V. High Court of Delhi. 5. In view of the contention raised by the Learned Counsel for the parties & after going through the records it is not disputed that specific issue was framed by the Trial Court regarding maintainability of the suit which was answered in favour of the Plaintiffs & said issue was confirmed in appeal & the execution case was filed to execute the decree. Therefore whether the executing Court will again consider the same? 6. This Court in the case of Central Bank of India (supra) 'field that there is a specific bar under Section 34 of the SARFAESI Act regarding jurisdiction of the Civil Court as well as other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under said Act. Hence the Civil Court should refrain from exercising its jurisdiction under the aforesaid act. The said decision is not applicable in the present case as the suit was decreed & Court has answered the maintainability of the suit which was final. 7. In the case of M/s. Bishnu Mohan Mallik (supra) wherein this Court held that Civil Court being a Court having initial & otherwise inherent jurisdiction under the subject-matter to entertain the suit under the Code of Civil Procedure which has been ousted by a subsequent legislation, a special statute no doubt created a Court of pro tanto jurisdiction, but nonetheless, if the Civil Court decides rightly of wrongly that it is competent to maintain the suit & ultimately passes a decree, then the executing Court being a Court of coordinate jurisdiction cannot question the legality of that decision on an objection under Section 47, C.P.C., as that would obviously amount to going behind the decree. 7.1. The Apex Court in the case of Kanwar Singh Saini (supra) held that it is a settled legal proposed that the executing Court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide State of Punjab & Ors. v. Mohinder Singh Randhawa & Anr. AIR 1992 SC 473 ). Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide State of Punjab & Ors. v. Mohinder Singh Randhawa & Anr. AIR 1992 SC 473 ). In view of the above settled principle the Civil Court has - considered regarding the maintainability of the suit & passed a decree which was final. The executing Court cannot go behind the decree. The question arises in this application answered accordingly. -As there is no error apparent on the face of the record this Court is not inclined to interfere with the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India. Accordingly the Civil Miscellaneous Petition is dismissed.