1 59cp16-09 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CONTEMPT PETITION NO.16 OF 2008 IN CIVIL APPLICATION NO. 846 OF 2005 IN WRIT PETITION NO.3899 OF 1992 Divakar Gopinath Rothe .. Petitioner V/s. The Administrator & Others .. Respondents ..... Mr. I. S. Thakur and Ms. Shraddha Y. Mohite for the petitioner. Mr. R. D. Soni i/b. M/s. Ram & Co. for respondent Nos.1 to 15, 17 to 19. Mr. N. D. Sharma for respondent No.7. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 22, 2011. P.C.: Heard the learned counsel appearing for the Petitioner. The petitioner is alleging the breach of order dated 18th November, 1999 passed in Writ Petition No.3899 of 1992 and order dated 15th December, 2006 passed by this Court in Civil Application No.846 of 2005 in the said Writ Petition. 2. As far as the order dated 18th November, 1999 passed by this Court is concerned, the Civil Application No.846 of 2005 was filed in the disposed of Writ Petition in which a grievance was made that the respondents-contemnors have committed a breach of 2 59cp16-09 order dated 18th November, 1999. The Civil Application was filed by the present contempt petitioner. 3. Relevant part of the order dated 6th July 2007 passed by a Division Bench of this Court on Civil Application No.846 of 2005 reads thus: “2. Chapter XVII, Rule-23 of the Appellate Side Rules prescribes the procedure for execution of order of this Court. Therefore, the remedy of approaching the appropriate forum under the said rule is available to the applicant. Therefore, this application is rejected. 3. At this stage the learned counsel for the applicant tried to raise his voice and stated that he is not being heard in the matter. He tried to submit that there is a fraud committed by the other side while recording the minutes of order. We are at loss to know when the applicant wanted to contend a fraud then in that circumstances he should not have insisted for implementation or execution of the order, because the fraud vitiates the order. Learned counsel submits that it is his alternate prayer. That means if the order is executed he is ready to get the fruits of the order and if the order is not obeyed then he wants to term it as fraud. Such a status cannot be obtained by the same order. Either the order can be acceptable to the party or it can be fraudulent. The whole thrust of the application is to seek intervention by this Court without following the execution proceedings as contemplated under Order – XVII Rule – 23 of the Appellate Side Rules. Therefore application is rejected. 4. At this stage the learned counsel for the applicant tried to rely upon the order passed on 15th December, 2006 and tried to make a grievance that it is not complied with. Even if the order is not complied with the remedy under law is the recourse to the aforesaid provisions. Therefore, the applicant shall follow that remedy. We refrain to entertain the application. Application is ultimately rejected.” 3 59cp16-09 4. The first part of the said order holds that the petitioner is entitled to execute the order dated 18th November, 1999 by fling execution application. Relying upon the observations in Clause (4), the learned counsel for the petitioner submits that remedy of filing a Contempt Petition for breach of order dated 15th December, 2006 is kept open by the Division Bench. However, the said submission cannot be accepted as the Division Bench has held that the remedy of the applicant was to take recourse to the aforesaid provision of Rule – 23 of Chapter XVII of the Appellate Side Rules, which permits the execution of orders passed in the Writ Petition. It is not disputed that the petitioner has filed an execution application which is still pending. Therefore, this is not a case where contempt jurisdiction can be allowed to be invoked. 5. The second breach is of order dated 15th December, 2006. The relevant part of the said order reads thus: “ On submission of this list with the details mentioned above, we direct the respondent Nos.13 to 20 to place the said list for their considerations for being granted membership of respondent Nos.13, 15, 17 and 19 Co-operative Housing Societies. The decision shall be taken before 31st January, 2007 in respect of the members, to the extent possible. The decision shall be placed before us on the next date.” 6. It appears that a Special General Body Meeting of the 19th Respondent Society was convened for taking the decision as per 4 59cp16-09 the said order dated 15th December, 2006. The resolution passed out in the said meeting records that the affidavit submitted by the petitioner was incomplete. In fact, the resolution records the necessary details which were required to be furnished. The resolution also records that after receiving the details, the affidavit will be verified. Therefore, in the meeting it was decided to call upon the petitioner to furnish particulars. Considering the minutes of the meeting, this is not a case where it can be said as of today that there is a willful disobedience of the order dated 15th December, 2006. 7. At this stage, no case is made out for initiating action under the Contempt of Courts Act, 1971. The petition is accordingly disposed of. 8. All remedies of the petitioner are kept open. (A.S.OKA, J.)