1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1867 OF 2002 Vimal Prashant Salve, Age 35 years, Occ. Service, R/o. Manmad, through General Power of Attorney Sri Prashant Shripati Salve, Age 58 years, Occ. Nil R/o. Vivekanand Nagar, Manmad, District Nashik ...Petitioner Versus 1 Kolpewadi Gramin Bigarsheti Sahakari Patsanstha Maryadit Kolpewadi, Tq. Kopargaon District Ahmednagar 2 Jagannath Fakira Deokar, Age42 years, Occ. Agri R/o. Takli, Tq. Kopargaon, District Ahmednagar 3 Ramesh Suryabhan Gaikwad, Age 29 years, Occ. Agriculture, R/o. as above. 4 Babulal s/o Dadabhai Shaikh, Age 35 years, Occ. Agriculture, R/o. R. No.2 and 3, Kolpewadi, Tq. Kopargaon, Dist. Ahmednagar ...Respondents ..... Mr. V.D. Salunke, advocate for the petitioner None appears for the respondents ..... 2 CORAM: S.S. SHINDE, J. DATE OF RESERVING THE JUDGMENT : 02.09.2009 DATE OF PRONOUNCING THE JUDGMENT : 07.09.2009 JUDGMENT:- 1 This writ petition is directed against the order dated 29.4.2002 passed by the Co-operative Appellate Court Mumbai, Bench at Aurangabad in Misc. Appeal No. 13 of 2002. 2 The background facts of the case as as under:- The petitioner herein is original opponent No.4 in dispute No. 561 of 2001 filed by the present respondent No.1 before the Co- operative Court at Kopargaon. The said dispute was filed for recovery of amount against respondents 2 to 4, whereas the present petitioner was not made party to the dispute. The petitioner herein has purchased the Tata Sumo jeep in question from original opponent No. 1, who is present respondent No.2. The disputant advanced loan for an amount of Rs.1,86,400/- to opponent No.1 for which the opponent Nos. 2 and 3 are guarantors. The loan amount was to be repaid in three installments of Rs.55,530/- 3 with 21% interest. The opponent No.1, did not pay installment regularly and on 18.9.1999 he sold vehicle to the present petitioner for an amount of Rs.2,32,500/- and the transaction was complete. An agreement between the petitioner and original opponent No. 1 was by party agreement and the disputant was not party to the said agreement. On 9.7.2001 the disputant filed an application for custody of the vehicle. The vehicle was recovered from the possession of the petitioner herein who was not party to that dispute. On 24.9.1991, the petitioner herein filed application below Exh. 24 for adding him as party opponent No.4. The said application was allowed. The petitioner filed another application below Exh.26 for restoration of custody of the vehicle. The Co-operative Court has allowed the said application and directed the disputant to release and hand over the custody of the Tata Sumo Jeep bearing No. MH-17- C-1949 to the present petitioner i.e. opponent No.4 subject to condition that the opponent No.4 shall deposit Rs.1,00,000/- with the disputant within a period of six months. Being aggrieved by the said order, the original disputant filed appeal before the Co-operative Appellate Court. It is the case of the present petitioner that the disputant was not aggrieved by order of the Co-operative Court but he was interested to fix the installments, 4 therefore, he filed appeal for modification of the order of the Co- operative Court praying to direct the petitioner to pay monthly installment of Rs.20,000/-. The Co-operative Appellate Court passed the impugned judgment and order on 29.4.2002 directing the petitioner herein to deposit regularly the remaining amount as per the order of the lower court till 15.5.2002 and he shall hand over the possession of the vehicle to the disputant. On failure, the disputant will have right to recover it through the Court. Hence, this writ petition. 3 Learned counsel appearing for the petitioner submitted that, he was not party to the original dispute. Therefore, there was no question of passing any order against him. It is further submitted that the agreement between the petitioner and owner of the vehicle was not tripartite agreement and that was agreement between the petitioner and the owner of the vehicle and therefore, the disputant was not competent to seek execution of the said agreement. It is further submitted that the agreement was hire purchase agreement between the disputant and the borrower and guarantor and the present petitioner was no way concern with the said agreement. It is further submitted that the receiver appointed by the Court was suppose to recover the possession of the vehicle from the custody of original opponent No.1 and not from the petitioner. However, the court receiver illegally recovered the possession of the vehicle from the custody of the present petitioner. It is further submitted that when the original 5 claim is not against the present petitioner, the Co-operative appellate court was not suppose to pass any orders against the present petitioner. Therefore, learned counsel relying on the pleading and the grounds in the petition and annexures thereto, has submitted that the Member, Co-operative Appellate Court has exceeded its jurisdiction and therefore, the said order deserves to be set aside. 4 Though the respondents are duly served and advocates have entered their appearances on their behalf, however, none appears for them. Reply filed by the respondents refers to the higher purchase agreement and reply to the pleading made in the petition. 5 After hearing counsel for the petitioner and after perusal of the reply filed by the respondents, I am of the considered view that the Member, Maharashtra Co-operative Appellate Court has exceeded its jurisdiction and passed the impugned judgment and order. In fact, the judgment and order dated 24.9.2001 passed by the Co-operative Court is an interim order on an application filed by the petitioner herein. In the said order the petitioners herein was directed to deposit Rs.1.00 lacs with disputant society within a period of six months from the date of order and there was further direction to deposit the remaining amount with disputant society within six months. 6 On careful perusal of the appeal filed by the original disputant, it 6 appears that the appellant raised objection about maintainability of the application filed by the petitioner before the Co-operative Court for custody of the vehicle. There is also ground in the appeal that the petitioner herein was opponent No.4, is not part to the original proceeding. In para 9, the appellant i.e. original disputant has stated that the learned lower court ought to have directed the opponent No.4 to deposit the amount of Rs.1.00 lacs by monthly installment and it was also further stated in the said ground that in case amount of Rs. 1.00 lac is not paid within six months by the petitioner, the appellant society will again have to approach lower court for attachment of the vehicle and ultimately it was prayed that the impugned judgment and order may be quashed and set aside. 7 It was open for the co-operative appellate court either to set aside the order or to reject the appeal. The appellate court exceeded its jurisdiction and in operative part of the order directed the opponent No.4 to deposit the remaining amount as per the order of Co-operative Court upto 15.5.2002 otherwise shall hand over the possession of disputed vehicle to the disputant and if she fails the disputant will have right to recover it through the court. So far as the direction to hand over the possession of the vehicle to disputant or in case of default in payment, is in excess of jurisdiction exercised by the appellate court. In fact the appellate court was entertaining the appeal against the interim order and while entertaining the appeal should 7 have kept in mind that the original dispute is pending before the Co- operative Court and pending original dispute virtually the appellate court has granted final relief to the disputant by directing the present petitioner opponent No.4 though he is not added as respondent in original dispute. Therefore, the impugned judgment and order of the appellate court is set aside. Writ petition is allowed. Rule made absolute in the above terms. 8 It will be open for the Co-operative Court to pass necessary orders in main dispute after hearing the respective parties in accordance with law. 9 Civil application, if any, stands disposed with. (S.S. SHINDE, J.) rlj/