1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 372 OF 2010. Smt. Vidyadevi Krupaldas Takarani -: versus :- Shivratan Sahakari Gruhnirman Sanstha and another Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 20, 2010. Heard finally by consent of Shri N.R. Saboo, learned counsel for petitioner, Shri C.A. Joshi, learned counsel for respondent no.1 and Shri S.A. Mohta, learned counsel for respondent no.2. In a suit instituted by the petitioner, a finding delivered is Cooperative Society was not necessary party. The suit was instituted against a person who claimed to be Secretary of that Society. The suit was for removal of encroachment, possession and perpetual injunction. Suit came to be decreed and defendant therein filed appeal. During the pendency of the appeal, the said defendant took a stand that he has handed over possession to the President of the Cooperative Society i.e. present respondent no.1. The said Cooperative Society through its President then filed a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 seeking a declaration that alleged sale 2 deeds executed by that defendant in favour of petitioner/plaintiff in Regular Civil Suit No. 626/1996 were not binding on the society. The petitioner / plaintiff in the meanwhile filed execution proceedings and society through its President also filed objection in that execution, stating that it was not party to the Civil Suit and hence the decree is not binding on it. The petitioner / plaintiff then filed an application without mentioning any express provision before the Cooperative Court, seeking stay of further proceedings in dispute under Section 91 of the Act, till the objection was decided by the Executing Court. That objection has been overruled by Cooperative Court and that order has been maintained by the Cooperative Appellate Court. Thereafter, present Writ Petition has been filed. Shri Saboo, learned counsel contends that the defendant who was Secretary thereafter only to defeat the decree, malafidely during the pendency of the Regular Civil Appeal claimed to have handed over possession to the President of the Society. He therefore states that the objection raised by the President in execution and challenge before the Cooperative Court are identical and hence this objection has to be decided first as it is in execution of a decree passed in 1996 suit. Shri Joshi, learned counsel for cooperative society i.e. respondent no.1 in Writ Petition contends that nature of proceedings before the Cooperative Court under Section 91 of the Act and in objection are distinct. In Cooperative Court no relief in relation to decree passed in the Civil Suit is sought and a declaration is about the sale deeds. 3 In execution, the respondent no.1 has pointed out that it was not party to the Civil Suit and hence decree cannot be executed against it. According to him to attract provisions of Section 10 of Civil Procedure Code or its analogy, both the proceedings have to be suit only. Shri Mohta, learned counsel appearing for respondent no.2 supports the arguments of Shri Saboo, learned counsel for petitioner. It is clear that in judgment dated 17.02.1999 delivered in Regular Civil Suit No. 626/1999 the finding that Society is not necessary party was already reached by the competent Civil Court. The defendant therein was claiming to be allottee of suit plots by society, filed Regular Civil Appeal, but that appeal has also been dismissed. The filing of proceeding under section 91 of the M.C.S.Act by respondent no.1 needs to be viewed in this background. In dispute filed under section 91 of the Act, declaration sought is of cancellation of Sale deeds dated 28.03.1990 and 21.05.1990 in the name of petitioner and respondent no.2. The declaration is sought obviously because of civil litigation and decree therein. Simultaneously in Regular Darkhast no.275/2002 an application under Order XXI Rule 19 of Civil Procedure Code read with Section 151, has been filed for declaration that the decree sought to be executed is not binding on the objector – Society. Thus, purpose of proceedings as filed and Section 91 dispute is one and same. Had objector – Society not filed such objection, the situation would have been different. Having filed such objection and invited for adjudication, it is clear that the Executing Court has to consider that issue in 4 the background of its earlier finding i.e. finding recorded prior to delivery of decree in this respect. Thus the contentions that the objection proceedings in execution are not a suit under section 10 of C.P.C., is atleast misconceived in the present background. The Regular Darkhast filed by petitioner is pending since 2002 and civil suit filed by them for necessary relief is of the year 1996. Thus, those proceedings are first in point of time. It is therefore, obvious that the objection raised by respondent no.1 needs to be adjudication upon first in execution proceedings. It is also obvious that if simultaneously consideration of both is permitted, there is possibility of mutually contradictory findings being reached by the civil court as also by the Cooperative Court. To avoid such contingency, Section 10 of C.P.C. Or its analogy needs to be invoked. In this situation, the application filed by the petitioner for staying the proceeding in dispute no. 658/2002i is allowed, and those proceedings are stayed during the pendency of the objection raised by respondent no.1 in Regular Darkhast no.275/2002 and the proceedings in Regular Darkhast are expedited and the Court of 3rd Joint Civil Judge, Junior Division, Akola shall decide said objection raised by respondent no.1 as early as possible and in any case by 31.08.2010. Writ Petition is thus allowed in the aforesaid terms. Rule accordingly. No costs. JUDGE 5 Rgd.