1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.34 OF 2010. Sau.Taraben w/o Bharat Dabhi - APPELLANT VERSUS 1) Premchand s/o Prathviraj Kotecha and Ors. - RESPONDENTS ***** APPEAL FROM ORDER NO.35 OF 2010. Abhiman s/o Chhannu Patil - APPELLANT VERSUS 1) Premchand s/o Prathviraj Kotecha and Ors. - RESPONDENTS **** APPEAL FROM ORDER NO.36 OF 2010. Sambhaji s/o Nilkantrao Jadhav - APPELLANT VERSUS 1) Premchand s/o Prathviraj Kotecha and Ors. - RESPONDENTS **** APPEAL FROM ORDER NO.37 OF 2010. Ramesh s/o Ramdhan Patil -APPELLANT VERSUS 1) Premchand s/o Prathviraj Kotecha and Ors. - RESPONDENTS 2 **** Mr.Vijay B.Patil,Advocate for Appellants; Mr.NN Desale, Adv. h/for Mr.AG Talhar, Advocate for Respondent No.1 Mr.MM Bhokarikar, Adv. for Respondent No.3. ----- CORAM : K.U.CHANDIWAL,J. DATE : 26th November,2010. PER COURT: 1) Heard learned Counsel. 2) Special Civil Suit No.277 of 1996 of the contractor was decreed against a cooperative housing society. The said decree was questioned by the society before the High Court and the High Court directed the respondent/society to deposit Rs.1,60,000/- within a period of four weeks and failure to do so, the judgment and decree passed on 6th July, 2001 has reached the finality. 3) Consequent upon the said judgment and decree, execution proceedings(Special Darkhast No.25/2001) are initiated. Since Chairman of the society avoided the notice of execution proceedings, they were duly served by following the procedure. Certain members of the society raised an objection to the execution and their 3 objections were entertained. The present appellants, out of 12 members, being founder members of the society, holding Block Nos.1,6,9 and 12, did not prosecute the matter. Consequently, all the formalities of execution were adhered to and the property, the four blocks, were put on auction and Sale Certificate was directed to be issued by order dated 4.5.2005 in Special Darkhast No.25/2001. 4) After all this exercise, the appellants herein, as members of the said cooperative housing society, approached the learned Executing Court, seeking quashing and setting aside the order of issuance of the Sale Certificate and raised objection in terms of Order 21 Rule 90 CPC. 5) One of the contentions before the Executing Court was, the amount of Rs.1,60,000/- as was directed in First Appeal St. No. 20746/2002 by the High Court, is complied with. However, record rebelled against the members of the society, (appellants herein), as there is no such deposition of the amount. 6) Mr.Patil, learned Counsel for the appellants, canvassed that the liability of the contractor was as against the housing society and 4 it being a joint and several, new members of the society, and particularly the present appellants, should not have been picked and targeted for getting the fruits of the decree generated in favour of the decree holder. I do not agree to this proposition as the very nomenclature of the decree illustrated to be joint and several. Consequently, the decree holder need not be dictated against whom the decree is to be executed. 7) The second objection that has been raised is, no individual notices to the members were served. However, members being forming part of the society were served, at least six members had objected and the present appellants remained in slumber and allowed the proceedings to reach the compliances, as warranted under Order 21 of CPC including issuance of the Sale Certificate illustrated herein above. 8) The objection that the execution should be further generated against all the 12 members, though is touchy and enchanting, however, looses import to be accepted. 9) The order under challenge passed in Special Darkhast No.25/2001, raising objections about selling of flats of the present appellants, 5 being in tune with the record, does not warrant any interference. 10) The learned Counsel for the appellants took recourse to the judgment in the matter of Satyanarayan Bajoria and Anr. Vs. Ramnarayn Tibrewal and Anr., reported in AIR 1994 SC 1583, paragraph 13 thereof reads as under : “The lower appellate court took the view that perusal of the order sheets dated 26th March, 1971, 20th July, 1971 and 19th August, 1971 of execution case No.19/55 of 1968 shows that notices under Order 21 Rule 22 were issued and served on the judgment-debtor. To say the least it was erroneous on the part of the lower appellate court to refer to the order sheets for showing service of notice on the judgment debtor as required under Order 21 Rule 22 of the Code. The proceedings for setting aside the sale under Order 21 Rule 90 of the Code were independent proceedings and the file of proceedings under Order 21 Rule 22 of the Code could not be referred to in such proceedings without actual proof of 6 service as per the various reports of alleged service contained in proceedings under Order 21 Rule 22 of the code. Without proof of service of notice in these proceedings, the lower appellate court could not have gone merely by order sheets of the execution file.” 11) There cannot be any quarrel and contest on this proposition, however, the society, of which the present appellants are members, appeared at all the stages, made statement to deposit the amount but diffused solemn statement and consequently, the same being binding to the appellants incidentally founder members, they cannot be permitted to coin that there was no service. 12) In the result, the Appeals From Order, challenging the order referred above lacks merit, dismissed. 13) The appellants are at liberty to satisfy the decree, if they so desire, within sixty days from today by making remittances before the learned Executing Court. The learned Executing Court shall not proceed further pursuant to the orders referred above for sixty days. 7 14) The amount of Rs.50,000/- each, deposited by the appellants, be remitted to learned Executing Court, who will decide about its disbursement appropriately. 15) Civil Applications in respective Aos are disposed of. (K.U.CHANDIWAL) JUDGE bdv/