1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7092 OF 2006. Popatrao S/o Arjunrao Paithankar ... Petitioner. Versus The State of Maharashtra and others ... Respondents. ... Mr.D.L.Agrawal, advocate for the petitioners. Mr.D.V.Tele, A.G.P. for the Respondent No.1. Respondent No.2 served. Mr.S.G.Jahgirdar, advocate for the Respondent No. 3 - absent. ... CORAM : V.R.KINGAONKAR,J. Date : 01.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioner challenges judgment and order dated 2.2.2006, rendered by the Cooperative Appellate Court in Appeal No.18/2005 and order 2 dated 7.8.2006, dismissing his Review Petition No.1/2006 by that Court. The petitioner is member of Respondent No.3 Cooperative Housing Society. He was allotted a plot bearing No.2 situated at Kannad-Hiwarkheda road. According to him, he constructed house on western half portion and has also constructed some part of remaining eastern half. The Respondent No.3 passed a Resolution No.3 on 1.8.1986 at the behest of the Respondent No.2 - Sushilabai, purporting to allow transfer of ownership in her favour to the extent of eastern half portion of the above referred plot. She executed a sale deed in favour of one Narayan Sonawane, after such Resolution was passed. He and said Narayan Sonawane, offered obstruction in his lawful enjoyment of the eastern half portion of the plot No.2 and, therefore, he was constrained to file a Dispute No.64/2003 in the Cooperative Court, Aurangabad for cancellation of the said Resolution No.3. The learned Judge of the Cooperative Court proceeded exparte when the Respondents therein, including present Respondent No.2 Sushilabai remained absent. By is judgment dated 4.12.2003, 3 the learned Judge of the Cooperative Court, Auragnabad allowed the dispute raised by the petitioner and declared that the Resolution dated 1.8.1996 adopted by the Respondent No.3 was null and void. Aggrieved thereby, the Respondent No.2 preferred an application U/o IX Rule 13 of the C.P.C. vide Misc.Application No.12/2004. The contention of the Respondent No.2 Sushilabai was that she was not served with summons and was unaware of the exparte judgment. The learned Judge of the Cooperative Court dismissed her application filed U/o IX Rule 13 of the C.P.C. Feeling aggrieved, she preferred an appeal bearing Appeal No.18/2005. Simultaneously, she filed separate Appeal No.22/2005 against the exparte decree rendered by the Cooperative Court on 4.12.2003 alongwith an application for codonation of delay. The application for condonation of delay came to be dismissed. The Cooperative Appellate Court held that there was no substantial ground to condone the delay as it was not properly explained. Obviously, the appeal No.22/2005 preferred by the Respondent No.2 Sushilabai against the exparte judgment rendered 4 by the Cooperative Court came to be dismissed due to dismissal of condonation of delay application. However, her Appeal No.18/2005 filed against order of Cooperative Court in Misc.Application No.12/2004, rejecting that application filed U/o IX Rule 13 of the C.P.C. came to be allowed by the impugned order dated 2.2.2006 and the Cooperative Appellate Court directed setting aside of the said order. The petitioner filed Review Application No.1/2006 on the ground that the appeal could not have been allowed because prior to such order dated 2.2.2006, the application for condonation of delay in Appeal No.22/2005 was dismissed on 8.12.2005 and, therefore, the Regular Appeal itself was dismissed and the exparte decree came to be confirmed. The learned Judge of the Cooperative Appellate Court rejected the Review Petition. Hence, the petitioner challenges both these orders of the Cooperative Appellate Court. 3. Heard learned counsel. 4. The legal position is explicitly clear 5 in view of "P.Kiran Kumar Vs. A.S.Khadar and others" AIR 2002 Supreme Court 2286 and "Rani Choudhury Vs. Lt.Colo.Suraj Jit Choudhury" (1982) 2 Supreme Court Cases 595. The Apex Court has held that where the Regular Appeal filed against exparte decree has been dismissed, it would create legal embargo on subsequent application U/o IX Rule 13 of the C.P.P. for setting aside the exparte decree/award. The Regular Appeal preferred by the Respondent No.2 (Appeal No. 22/2005) was deemed as dismissed on 8.12.2005. The legal implications of such dismissal is that the exparte decree became final. Once such decree becomes final, it was not permissible for the Cooperative Court to entertain the appeal No. 18/2005 and allow the same by subsequent order dated 2.2.2006. For, it would tantamount to review of its judgment in contemporaneous proceedings of Appeal No.22/2005 and the delay condonation application which was already dismissed. Secondly, such internal contradiction in the two orders of the same Court is impermissible. The Court should not do a thing by one hand and destroy the same by another hand. 6 The Respondent No.2 was at liberty to elect either of the remedy when she had pursued the two available remedies, one by filing a Regular Appeal No.22/2005 and another by filing separate Appeal No.18/2005 only against the dismissal of her application No.12/2004 filed U/o IX Rule 13 of the C.P.C. She could not have been permitted to try her luck for both the matters before the same forum. The contradictory judgment rendered by the same Court is unsustainable for yet another reason. This is against the norms of judicial discipline and as such both the impugned judgments and orders of the Cooperative Appellate Court are quite arbitrary. In this view of the matter, the petition deserves to be allowed. 5. In the result, the petition is allowed. The impugned orders rendered by the Cooperative Appellate Court in Appeal No.18/2005 and Review Petition No.1/2006 are hereby quashed. Rule is made absolute. (V.R.KINGAONKAR,J.) asp/office/wp709206