1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9975 OF 2009 Janata Co-operative Bank Ltd.Satara ...Petitioner vs. Kamdhenu T. Company And another ...Respondents Mr.Uday Warunjikar for the petitioner Mr.V.S.Talkute for respondent no.1 CORAM :A.S.OKA,J. DATE : APRIL 20, 2010 P.C.: 1 Heard the learned counsel for the parties. The petitioner is the third party to the pending application for execution of decree passed in Special Civil Suit no. 13 of 1996. The first respondent is the decree holder and the 2 nd respondent is the Judgment debtor. 2 The first respondent is executing a money decree passed in his favour in Special Civil Suit No.179 of 1996. the petitioner had filed a dispute under section 91 of the Maharashtra Co-operative Societies Act,1960 (hereinafter referred to as the said Act). The 2 nd respondent Judgment debtor was one of the opponents to the said dispute. It appears that the said dispute was filed for recovery of certain amount which was borrowed by the 2 nd respondent from the petitioner. 3 In the execution application filed by the first respondent, an application was made by the petitioner for intervention. The prayer in the said application was that the petitioner be impleaded as a party to the execution application. The other prayer was that sale 2 price of the property of the 2 nd respondent which was ordered to be sold in execution be paid over to the petitioner. A contention raised in the said application was that the petitioner has a charge over the property which was sought to be auctioned in the execution of the money decree passed in the civil suit filed by the 1 st respondent against the 2 nd respondent. By order dated 31 st July 2007, the said application made by the petitioner at Exh.42 was allowed to the extent of the first prayer of intervention. The learned Judge observed that other prayer for withdrawal of price will be considered after the auction sale of the property was confirmed. 4 An application was made by the petitioner at Exh.81 in the execution application by pointing out that the property has been sold for the price of Rs.9,05,000/- on which the petitioner has a charge. A prayer was made that without hearing the petitioner, the said amount shall not be permitted to be withdrawn by the 1 st respondent-decree holder. 5 However, an application was made by the petitioner at Exh.108 contending that the petitioner had a prior charge on the property auctioned and therefore, the sale of the property in execution was illegal. Therefore, the first prayer in the application was for setting aside the auction sale. The second prayer in the alternative was for a direction to pay sale proceeds to the petitioner. 6 The executing Court heard the prayer (b) of application at Exh.42 along with the aforesaid applications at Exh.81 and 108. By order dated 6 th October 2009, the contentions raised by the petitioner by the said applications were rejected and the first respondent was permitted to withdraw the sale proceeds. 3 The challenge in this writ petition is to the first order passed on the application at Exh.42 on 31 st July 2007 and the subsequent order passed on 6 th October 2009 below applications at Exh.42,81 and 108. 7 The learned counsel for the petitioner submitted that the petitioner had a prior charge over the property which is sold in auction. He pointed out that in the dispute filed by the petitioner before the Co-operative Court, an order of temporary injunction was passed on 20 th August 1990 by which the 2 nd respondent was restrained from disposing of the property in question. He pointed out that the order continued to operate till the disposal of the dispute. An award was made on 9 th July 1991 in the said dispute which permitted the petitioner to recover the amount by the sale of the said property. He invited my attention to the order of attachment of the suit property dated 24 th August 1994 passed by the Special Recovery Officer. He submitted that an objection to the sale was raised by the petitioner way back in the year 2007 by making an application at Exh.42. He submitted that though the trial Court permitted the intervention by the petitioner, Prayer (b) for recovery of the amount of sale proceeds was postponed till the sale was confirmed. He pointed out that even in the First Appeal preferred by the second respondent against the decree passed in favour of the 1 st respondent, an application for intervention was made. He also pointed out that the application for intervention was made in the suit filed by the first respondent. He pointed out that a pursis filed by the first respondent in the suit stating that in the execution of the decree, notice will be issued to the petitioner. He stated that in view of the said pursis, the petitioner did not press the application made for intervention in the suit. He 4 submitted that in view of the aforesaid factual aspects, now the petitioner cannot be prevented from recovering the amount due and payable to the petitioner under the Award of Co-operative Court from the sale proceeds of the property deposited in the execution application in as much as the petitioner had a prior charge over the property which was sold in the execution. The learned counsel for the first respondent supported the impugned Judgment and Order. 8 I have given careful consideration to the submissions. It will be necessary to note the factual details which are recorded by the learned trial Judge in the second impugned order. The learned Judge has noted that in the suit filed by the first respondent, property in dispute was attached under order dated 4 th August 1990. The said order was of attachment before the Judgment. It is pointed out that the said order was later on confirmed and the attachment continued till the disposal of the suit. As per the decree passed in the suit, the attachment was continued till the realisation of the decretal amount. 9 It must be stated here that even according to the case of the petitioner, the property in dispute was attached at the instance of the petitioner by order dated 24 th August 1994. Thus, there was a prior order of attachment made by the civil Court on 4 th August 1990. The interim relief granted in the dispute filed by the petitioner was a limited interim relief restraining the second respondent from alienating the property in dispute. However, the fact remains that before the property was attached at the instance of the petitioner, there was already an order of attachment of the Civil Court. Therefore, the contention of the petitioner that 5 the petitioner has a prior charge over the suit property has been rightly negatived by the Executing Court. A reliance was placed on certain documents executed by the 2 nd respondent. The trial Court has quoted relevant recitals in the said documents which recorded the statement of the 2 nd respondent that the petitioner can recover the amount due and payable to the petitioner from the assets of the 2 nd respondent. However, the said documents cannot create any charge in favour of the petitioner on the property sold in auction. 10 At this stage, it must be noted that from the application at Exh.42 made by the petitioner, it appears that the petitioner was fully aware that the property was put to auction. In fact, prayer clause (b) of the said application suggests that the petitioner had no objection for auctioning the property but the prayer was for allowing withdrawal of the amount out of the price recovered in the auction. As the sale was not finalised, the learned trial Judge was justified in postponing the consideration of prayer clause (b). Only after the sale was finalised, an application was made by the petitioner at Exh.108 for setting aside the sale. 11 Entire argument of the petitioner is based on the alleged prior charge created in favour of the petitioner. The fact that the petitioner applied during the pendency of the suit and appeal for intervention is not relevant for claiming a share or any right in respect of the price deposited in the Court. As there was a prior attachment effected by the Civil Court in the suit filed by the respondent when continued through out, the argument of the petitioner of holding prior charge over the property has been rightly rejected by the trial Court by the impugned order. 6 12 Hence, no case for interference is made out. Writ Petition is rejected. 13 The learned counsel for the petitioner prays for continuation of ad-interim relief granted on 26 th November 2009. The said prayer is opposed by the learned counsel for the first respondent. Ad-interim relief granted earlier will continue to operate till 18 th June 2010. JUDGE