civil wp 7187-22.doc

R.M. AMBERKAR

(Private Secretary)

IN

IN THE

THE HIGH

HIGH COURT

COURT OF

OF JUDICATURE

JUDICATURE AT

AT BOMBAY

BOMBAY

CIVIL APPELLATE

CIVIL APPELLATE JURISDICTION

JURISDICTION

WRIT PETITION NO. 7187 OF 2022

Vipul Dharod

.. Petitioner

Versus

Prabhakar Parte & Anr.

.. Respondents

....................



Mr. Shree Ganesh M. Khaire a/w Ms. Kainat Sayyed for Petitioner



Mr. Nilesh S. Parte for Respondent No. 1



Mr. Ramgopal S. Tripathi for Respondent No. 2

...................

CORAM

: MILIND N. JADHAV, J.

DATE

: DECEMBER 06, 2022

ORDER

:

1.

By the present petition, Petitioner has, inter alia, prayed for

the following reliefs:-

“(a) That, this Hon’ble Court be pleased to call for the record and

proceedings in Chamber Summons No. 1266 of 2019 in Execution

Application No. 345 of 2009 in Dispute No. CC/III/676 of 1986

disposed of by HHJ Shri. M. Salman Azmi, the learned Judge

presiding in C.R. No. 1, City Civil Court, Mumbai and after going

into its legality and propriety same be ordered to be quashed

and / or set aside;

(b)

That, on quashing and / or setting aside the impugned order

dated 23.11.2019 this Hon’ble Court be pleased to allow the

Petitioner’s Chamber Summons No. 1266 of 2019 in Execution

Application No. 345 of 2009.”

2.

The Petitioner has challenged the order dated 23.11.2019

passed by the Executing Court in Chamber Summons No. 1266 of

2019 in Execution Application No. 345 of 2009 filed in Original

Dispute No. CC/III/676 of 1986.

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civil wp 7187-22.doc

3.

Heard Mr. Khaire, learned Advocate for Petitioner; Mr.

Parte, learned Advocate for Respondent No. 1 and Mr. Tripathi,

learned Advocate for Respondent No. 2.

4.

Chamber Summons 1266 of 2019 is filed by Applicant –

Vipul Dharod (Petitioner herein). Petitioner has contended that he is

the original member of Respondent No. 2 - Society since 09.07.1980

and his name is reflected in the original record and share register of

the society. According to Petitioner, Respondent No. 1 (Prabhakar

Parte) is the decree-holder but he is not a member of the society and

his name is also not reflected in the original list of members.

5.

The lis between the decree-holder (Respondent No. 1) and

Judgment-debtor (Respondent No. 2 - Society) pertains to the year

1986. Respondent No. 1 filed a suit before the Co-operative Court

wherein a restraint order was passed injuncting Respondent No. 2 -

Society from disposing the F.S.I. potential available on the land of the

society, and inter alia, directing the society to prepare a seniority list

of its members and to allot flats to its members according to the said

list.

6.

In 2005, Society initiated expulsion proceedings under

Section 35 of the Maharashtra Co-operative Societies Act, 1960 read

with Rules 28 and 29 of the Maharashtra Co-operative Societies

Rules1 1961 against the Petitioner and 6 other original members of

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the Society. Petitioner filed Writ Petition No. 2855 of 2008 in this

Court. Separate Writ Petitions were filed by the other expelled

members. By common order dated 31.03.2017, the Writ Petitions

were allowed and the Asst. Registrar, Co-operative Societies was

directed to hear the Petitioners and decide their grievance against

expulsion. Accordingly the Asst. Registrar, Co-operative Societies,

after hearing parties, rejected the expulsion order of the said

members, including the Petitioner.

7.

Mr. Khaire,

learned Advocate for Petitioner has

painstalkingly submitted that by virtue of the impleademnt

Application i.e. Chamber Summons filed by Petitioner in the Executing

Court, the Petitioner desires to aid and assist the Executing Court in

complying with the decree passed by the Co-operative Court and also

render assistance to Respondent No. 2 - Society in preparation of the

list of members of the Society. He submitted