Final Order 1

Order Details: Chamber summons
Pdf Text: 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.1266 OF 2019
CNR NO.MHCCO10070672019
IN
EXECUTION APPLICATION NO.345 OF 2009
Mr.Prabhakar Parte ..Decree holder
V/s
The Sion Kamgar CHS Ltd and ors ..Judgment debtors
And
Vipul Dharod ..Applicant
Ld. advocate Jaywant for DH
Applicant in person
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 23/11/2019
ORAL ORDER
1. This chamber summons is filed by the applicant. The
applicant contended that he is the original member
of Judgment debtor societyThe Sion Kamgar CHS
Limited since 09/07/1980 and his name is reflected
in the original record and share register of the
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society. The decree holder is not the original
member and therefore his name is not reflected in
the original list of members. In the year 1986, the
Decree holder has filed the suit before the Co
operative Court bearing No.CC/III/676/1986 and
order was passed restraining the Judgment debtor
from and/or disposing the F.S.I. available on the land
of the society by any arrangement whatsoever except
first enrolling members and allotting the flats and
had further directed the society to first prepare a
seniority list of members and to allot flats to
members strictly according to the list of members so
prepared. The applicant contended that society
without following the mandatory provisions of
Section 35, rule 28 and 29 of MCS Act and Rules, on
05/11/2005, had initiated expulsion proceedings
expelling the applicant and six other original
members from the membership of society. The
applicant filed Writ Petition No.2855 of 2008. The
other members also filed another six Writ Petitions
and common order was passed by allowing the writ
petitions by the Hon'ble High Court on 31/03/2017.
The Assistant Registrar, Cooperative Societies, after
hearing rejected the expulsion made by the society in
2005. The original member at Sr.No.85
(Mrs.D.R.Keshavji) expired and as per the direction
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of the Hon'ble High Court, the legal heirs were
brought on record. An application was made for
transfer of share of her nominee and thereafter the
same was made through the Assistant Registrar, F/N
ward to which the society had not replied within 60
days and therefore as per law the said nominee is
deemed member of the society and therefore her
name ought to have been reflected at Sr. No.85. It is
the contention of the applicant that the name of
Decree holder is mentioned at serial no.85 instead of
nominee of Mrs.D.R.Keshavji. The applicant
contended that the same is done with intention to
circumvent the rights of the legal heirs of deceased
Mrs.D.R.Kesavji. The decree is required to be
executed strictly in accordance to which it was
passed. The applicant and others are unable to get
the flat in the society till date. The society is giving
false, baseless and unlawful information. The
application is made by the applicant to make him
party to assist the Court in execution and therefore
this chamber summons is filed.
2. The Decree holder denied the contentions made by
the applicant. The applicant is son of the builder
who constructed the additional buildings on the
society land and while constructing the said buildings
created numerous problems for the members. The
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decree holder has been deprived of his right to
occupy the flat in the society because of the father of
the applicant. The applicant has lost before various
court. The Decree holder contended that he is the
member of the society and entitled to get the flat
pursuant to the Award dated 16/08/2001. The
decree holder has initiated proceedings against the
society and therefore prayed for dismissal of the
chamber summons.
3. I have considered the rival contentions of the parties.
It is the stand of the applicant that Hon'ble High
Court in writ petition No.2855 of 2008 held that
applicant has a right to agitate his grievances as a
result of restoration of his membership of the society
as per the original seniority by this order. The
applicant claims to be the member of the society
since 09/07/1980. This execution application is put
up for the execution of the award passed in case
No.CC/III/676/1986 filed by the decree holder
against the judgment debtors i.e. society,
N.D.Jadhav, Sahadev Parab, D.S.Bhosale and
J.M.Bhoir. This Court is the executing Court and
have to follow the decree strictly. If at all there is
any irregularity or illegal act of enrolling the
members by the society by denying the seniority of
the senior members, the same cannot be the subject
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matter of the inquiry in this execution. The Hon'ble
High Court has observed that the applicant is at
liberty to agitate his grievance as a result of
restoration of his membership of the society as per
the original seniority by the order of Hon'ble High
Court. This Court is not a forum to agitate the said
issue. The executing Court cannot go into the
validity of the list of the seniority prepared by the
society. The tenor of the chamber summons is that
the applicant want to add himself as a party for the
purpose of throwing the light as to agitate right of
the senior members which has been denied. This
cannot be the scope of the execution proceedings and
therefore chamber summons needs no consideration.
Hence, it is expedient to pass following order:
ORDER
1. Chamber Summons no.1266/2019 is
dismissed.
2. Chamber Summons is disposed of accordingly
23/11/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 23/11/2019
Transcribed on : 30/11/2019
Signed on : 13/12/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
13/12/19 at 12.40 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
23/11/2019
Judgment and order signed by P.O. 13/12/2019
Judgment/order uploaded on 13/12/2019
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