1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.1326 OF 2011 (Shri Gurjar Kshatriya Samaj and others vs. Amritlal Morarjibhai Parmar and another) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri S. Borkar, Advocate for the petitioners. Shri V.R. Mundra, Advocate for the respondent no.1. Ms. T. Khan, Assistant Government Pleader for the respondent no.2. -------- CORAM : R.M. SAVANT, J. DATED : JUNE 8, 2011 This petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 9/3/2011 passed by the learned Principal District Judge, Gondia in Miscellaneous Civil Appeal No.12/2011 whereby the learned Principal District Judge confirmed the order dated 5/2/2011 passed by the Executing Court in Regular Darkhast No.7/2010 whereby Court Receiver came 2 to be appointed by the Executing Court to prepare the voters' list so as to facilitate the conduct of the elections to the petitioner no.1 Society. The above writ petition and the proceedings leading thereto epitomise the malafide attempt on the part of the petitioners to stall execution of the decree, which has been passed against them and confirmed upto this Court. The respondent no.1 is the original plaintiff in Regular Civil Suit No.98/2007, which was filed by him questioning the elections which were held to the petitioner no.1 Society for the period from April 2007 to March 2010. The said elections were challenged on various grounds, which were mentioned in the said suit. The said suit came to be decreed by the learned Civil Judge, Junior Division, Gondia by judgment and order dated 30/4/2009 and though the plaintiff had sought the relief that he should be declared as elected as President of the petitioner no.1 Society, the trial Court directed holding of fresh elections to the petitioner no.1 Society. Aggrieved by decreeing of the said suit, the petitioners filed Regular Civil 3 Appeal No. 41/2009 in the District Court, Gondia, which appeal came to be dismissed by the judgment and order dated 27/1/2010 and the decree passed by the trial Court came to be confirmed. The matter was thereafter carried in Second Appeal by the present petitioners to this Court by filing Second Appeal No.409/2010, which Second Appeal came to be dismissed by this Court on 22/10/2010. At the time of passing of the decree by the trial Court, the trial Court had appointed the Assistant Charity Commissioner, Bhandara as the Court Commissioner to oversee the conduct of elections to the petitioner no.1 Society by having recourse to the Constitution of the Society as in force in the year 1962. The Assistant Charity Commissioner in her capacity as Court Commissioner submitted a report to the trial Court dated 5/6/2010 wherein she expressed her inability to conduct elections in terms of the 1962 Constitution of the petitioner no.1 Society as, according to her, there were hardly any members, who were surviving, as per the said 1962 Constitution of the petitioner no.1 Society. 4 As indicated above, the decree had been confirmed right upto this Court. The conduct of the petitioners discloses that they were bent upon seeing to it that the said decree was not implemented or complied with by the Court Commissioner. It appears that the petitioners put several spokes in the wheel of holding elections to the petitioner no.1 Society though the petitioners submitted voters' list as per the 1994 Constitution of the Society. The manner in which the petitioners have conducted themselves after passing of the decree can be seen from what is stated hereinafter. The decree holder, i.e. respondent no.1 herein having realised that the decree was not being implemented as required, was constrained to move an application for appointment of a Court Receiver. The reasons why the said application was required to be filed are inter alia mentioned in the said application. The said application was filed in Regular Darkhast No. 7/2010, which was filed by the decree holder for executing the said decree. The Executing Court considering the facts and circumstances of the case and more specially the fact 5 that in blatant disregard to the decree passed and in brazen violation of the said decree, the petitioners engineered holding of the elections in a meeting held on 3/10/2010 wherein purportedly President and 15 other Executive Members were allegedly elected and the petitioner nos. 2 to 4 whose elections were set aside by the decree passed, supposedly handed over charge of the property and the office of the Society to the alleged newly elected members. The Executing Court thought it fit to take recourse to Order XL of the Code of Civil Procedure by appointing a Court Receiver to protect the property of the Society as also to oversee the preparation of the voters' list of the petitioner no.1 Society. The reasons why the Court Receiver was required to be appointed find place in paras 18 and 19 of the order of the Executing Court, dated 5/2/2011. The Executing Court has issued elaborate directions to the Court Receiver, which are in the operative part of the said order, so as to facilitate preparation of the voters' list and also protect the property of the petitioner no.1 Society. Aggrieved by the said order dated 6 5/2/2011 passed by the Executing Court, the petitioners filed Miscellaneous Civil Appeal No.12/2011, which came to be dismissed by the appellate Court by order dated 9/3/2011. The appellate Court has observed that though the petitioners had lost right upto this Court, the petitioners once again questioned the very maintainability of the suit filed by the respondent no.1 herein being Regular Civil Suit No. 98/2007 on the touchstone of Section 92 of the Code of Civil Procedure. The appellate Court has further observed that the said submissions made on behalf of the petitioners herein in the said Miscellaneous Civil Appeal No.12/2011 could not be countenanced in view of the fact that the decree in question has been confirmed right upto this Court. The appellate Court, therefore, dismissed the said Miscellaneous Civil Appeal. In the present petition also, similar contentions are sought to be raised by the learned Counsel for the petitioners relying upon Section 92 of the Code of Civil Procedure. The said contentions can only be stated to be rejected in the teeth of the 7 fact that the decree has been confirmed upto this Court and, therefore, it would not lie in the mouth of the petitioners now to contend that the application filed for appointment of Court Receiver was not maintainable as the procedure prescribed in Section 92 of the Code of Civil Procedure has not been followed. In the conspectus of the facts as narrated above wherein the dishonest and malafide conduct of the petitioners is writ large, in my view, the orders passed by the Courts below appointing the Court Receiver cannot be faulted with. Needless to say that the Court Receiver would abide by the directions issued by the Courts below in preparing the voters' list in terms of the said order dated 5/2/2011 as confirmed by the order dated 9/3/2011. The petition is, therefore, devoid of any merit and is accordingly dismissed. However, in view of the conduct of the petitioners, which is evident from the record, in my view, imposition of costs would be justified as this is an exceptional case where the orders of the Courts are sought to be brazenly and openly breached and 8 violated. This Court, therefore, deems it fit to impose costs of Rs.10,000/- against the petitioners to be paid within two weeks from today. The costs to be personally paid by the petitioner nos. 2 to 4 in equal proportion. The persons, who are in-charge of the property and record of the society, to hand over the charge to the Court Receiver on the date that would be fixed by him. If such charge is not handed over, the Court Receiver would be entitled to take Police assistance, which will be provided by the concerned Police Station. Learned Assistant Government Pleader to communicate this order to the concerned Police Station. Copy of this order be given to the learned Assistant Government Pleader. JUDGE khj