Partly allowed

Mr Mohsin Sait v. Mohd Iqbal Sait

Karnataka HC11 Jan 2023WP/37640/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka, in a writ and civil revision petition, addressed an order of the executing court in social service dispute involving Cutchi Memon Jamath. The court allowed the revision partly, setting aside the direction in the executing order requiring issuance of a marriage certificate for the plaintiff's daughter, as it exceeded the scope of the original decree.

What did the court decide?

The second limb of the execution order directing issuance of Nikha certificate for the plaintiff's daughter was set aside; the first limb directing judgment debtors to obey the original decree was sus

Mr Mohsin Sait Vs Mohd Iqbal Sait — Company and Corporate | Karnataka HC (2023)

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WP No. 37640 of 2016 C/W CRP No. 375 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 37640 OF 2016 (GM-CPC) C/W CIVIL REVISION PETITION NO. 375 OF 2016

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IN WP.NO.37640/2016

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BETWEEN:

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MR.MOHSIN SAIT

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AGED ABOUT 78 YEARS

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S/O.LATE ABDUL KALEEM SAIT

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THE PRESIDENT OF

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CUTCHI MEMON JAMATH

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ASHOKA ROAD, MYSURU-570 001

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MR.MAHMOOD SAIT AGED ABOUT 76 YEARS S/O.LATE HASSAN ABDUR RAHMAN SAIT

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THE VICE PRESIDENT OF CUTCHI MEMON JAMATH

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ASHOKA ROAD, MYSURU-570 001

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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MR.IBRAHIM SAIT AGED ABOUT 48 YEARS S/O.LATE ISMAIL SAIT THE SECRETARY OF CUTCHI MEMON JAMATH ASHOKA ROAD, MYSURU-570 001

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…PETITIONERS

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(BY SRI ABHINAV R., ADVOCATE)

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AND:

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MOHD.IQBAL SAIT MAJOR S/O.LATE M.OMER SAIT @ JANI SAIT

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WP No. 37640 of 2016 C/W CRP No. 375 of 2016

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NO.1695, VI CROSS IRWIN ROAD MYSURU-570 001

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…RESPONDENT

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(BY SRI NEERAJ SHASTRI FOR SRI M.V.SUNDARARAMAN, ADVOCATES)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 21.06.2016 PASSED BY THE PRINCIPAL I CIVIL JUDGE & JMFC, MYSURU IN EX.NO.325/2015 AT ANNEXURE-J TO THE WRIT PETITION AND ETC.

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IN CRP.NO.375/2016

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BETWEEN:

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THE PRESIDENT OF CUTCHI MEMON JAMATH ASHOKA ROAD, MYSURU-570 001 REP. BY MR.MOHSIN SAIT AGED ABOUT 78 YEARS S/O.LATE ABDUL KALEEM SAIT

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THE VICE PRESIDENT OF CUTCHI MEMON JAMATH ASHOKA ROAD, MYSURU-570 001 REP. BY MR.MAHMOOD SAIT AGED ABOUT 76 YEARS S/O.LATE HASSAN ABDUR RAHMAN SAIT

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THE SECRETARY OF CUTCHI MEMON JAMATH ASHOKA ROAD, MYSURU-570 001 REP. BY MR.IBRAHIM SAIT AGED ABOUT 48 YEARS S/O.LATE ISMAIL SAIT

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…PETITIONERS

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(BY SRI ABHINAV R., ADVOCATE)

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AND:

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MOHD.IQBAL SAIT MAJOR S/O.LATE M.OMER SAIT @ JANI SAIT NO.1695, VI CROSS IRWIN ROAD MYSURU-570 001

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…RESPONDENT

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(BY SRI NEERAJ SHASTRI FOR SRI M.V.SUNDARARAMAN, ADVOCATES)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC PRAYING TO SET ASIDE THE ORDER DATED 13.07.2016 PASSED IN EXECUTION NO.325/2015 BY THE PRINCIPAL I CIVIL JUDGE & JMFC, MYSURU AND ETC.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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CRP.No.375/2016 is preferred by judgment debtors against the final order dated 21.06.2016 passed by the Court of Principal I Civil Judge and CJM, Mysuru in Ex.No.325/2015.

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It is the case of petitioners that they were described as judgment debtors in execution proceedings in Ex.No.325/2015 to enforce the judgment and decree passed in O.S.No.511/1997 passed by Principal I Civil Judge and JMFC, Mysuru. The relief granted in O.S.No.511/1997 is as under:

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“The suit of the plaintiff is decreed with cost.

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It is declared that the plaintiff is the member of the Cutchi Memon Jamath, Mysore and the

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defendants 1, 3 to 7, 9, 11 & 12 are hereby directed by way of Mandatory Injunction to extend all the benefits and privileges to the plaintiff which are available to the other members of the Cutchi Memon Jamath, Mysore.”

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It is the case of the petitioners herein that the petitioners, who were judgment debtors before the executing Court were not at all parties before the Original Suit in O.S.No.511/1997. However, the suit came to be filed by the plaintiff against Haji Ali Janab Azeez Sait, Abid Saleh Ahmed Sait, Haji Gul Mohammed Sait and few others and they were described as President, Vice President and Secretary as defendant Nos.1 and 3.

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Sri Abhinav R., learned counsel for petitioners/ judgment debtors vehemently contends that there is no executable decree as against the judgment debtors, which is Cutchi Memon Jamath or its office bearers and that Cutchi Memon Jamath is registered under the Karnataka Societies Registration Act, 1960 and no suit is filed against the Society. Therefore, the question of initiating execution proceedings against the petitioners/ Judgment Debtors is far fetched and is liable to be set aside. It is his further contention that the

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decree passed in O.S.No.511/1997 for the relief of declaration and mandatory injunction. As per Article 135 of the Limitation Act, 1963, the time prescribed for execution of such decree is 3 years. The decree is passed on 21.09.2004 and the execution petition is admittedly filed in the year 2015 i.e. after lapse of 11 years. Therefore, he contends that the execution petition itself is not maintainable, as it is barred by limitation.

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These are some of the preliminary objections raised by the learned counsel for petitioners, who contends that the execution proceedings itself is not maintainable, as the judgment and decree passed in original suit is not against the petitioners/judgment debtors and the executing Court has proceeded further beyond the judgment and decree and has ordered to issue Nikha certificate of the daughter of the plaintiff by recording their marriage in the concerned register, within two months from passing of the order against the judgment debtors, which is not the order in the original suit. The order passed in the original suit as stated earlier is only a declaratory

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relief granted in favour of plaintiff declaring him to be the member of Cutchi Memon Jamath, Mysuru and the next limb of the order is that a direction has been given to some of the

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defendants by way of mandatory injunction to extend all benefits and privileges to the plaintiff which are available to other members of Cutchi Memon Jamath, Mysuru. Therefore, he vehemently contends that the executing Court has gone beyond the judgment and decree and has passed an order, which is erroneous, illegal and arbitrary and same requires to be set aside.

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Per contra , Mr.Neeraj Shastry, learned counsel for respondent/plaintiff vehemently contends that the original suit came to be filed by the plaintiff against the office bearers of Cutchi Memon Jamath, Mysuru and they are described in the suit as defendant Nos.1 to 3 and against their names, it is very clearly stated as President, Vice President and Secretary of Cutchi Memon Jamath, Mysuru. The relief sought against them is not disputed and the judgment and decree granted against the defendants therein are all not much disputed by learned counsel for respondent/plaintiff. However, he contends that though the nomenclature of defendant Nos.1 to 3 first named in the suit is their respective names and thereafter, it is clearly mentioned that they are the President, Vice President and Secretary of Cutchi Memon Jamath, Mysuru respectively,

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against their names, a technical view cannot be taken to discredit the fact that defendant Nos.1 to 3 are none other than the President, Vice President and Secretary of Cutchi Memon Jamath, Mysuru. He further contends that the declaratory relief was granted in favour of the plaintiff and by way of mandatory injunction, all benefits and privileges were ordered to be extended to the plaintiff, which are available to other members of Cutchi Memon Jamath, Mysuru. Hence, he contends that the order of extending benefits and privileges to the plaintiff would also include that of his family members i.e. his daughter, who is part of his family and the benefits that are available to the daughter should also be given with regard to registration of her marriage certificate in the concerned register maintained by Cutchi Memon Jamath, Mysuru, to which the plaintiff and his daughter belong.

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Learned counsel further relies on following judgments in support of his case:-

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i) Benedito (Betty) Dias and Ors. Vs. Armando Benedita Fernandes and Ors. reported in MANU/MH/0175/2017;

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ii) Ramdas Shriram Chaudhari Vs. Guna Kondu

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Dhanger and Ors. reported in MANU/MH/0231/2003;

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iii) Sajjan K.Sanyasi Vs. Padmavathi Montessori

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School reported in MANU/KA/0297/1984;

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He further relies on Section 15 of the Karnataka Societies Registration Act, 1960, which reads as under:

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“15. Suits by and against society.− Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary or the trustees as shall be determined by the rules and regulations of the society, and, in default, of such determination, in the name of such person as shall be appointed by the governing body for the occasion:

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Provided that, it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if, on application to the governing body, some other officer or person be not nominated to be the defendant.”

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Section 15 of the Act prescribes as to how the party to

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be sued with the name of the President, Vice President and

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Secretary, which is not much in dispute by learned counsel for petitioners.

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Learned counsel for respondent/plaintiff also contends that the original suit, which was decreed earlier came to be challenged by the defendants in RA.No.107/2006 and on merits, the same came to be dismissed thereby upholding the judgment and decree in O.S.No.511/1997. On these grounds, he seeks to dismiss the petition and confirm the order passed by the executing Court.

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On perusal of the judgment and decree passed, it is apparently clear that a declaratory relief came to be granted in favour of plaintiff i.e. Mohammed Iqbal Sait, S/o.Late M.Omer Sait @ Jani Sait, declaring him to be the member of Cutchi Memon Jamath, Mysuru and some of the defendants therein were directed by way of mandatory injunction to extend all benefits and privileges to the plaintiff, which are available to the other members of Cutchi Memon Jamath, Mysuru. The execution petition came to be filed by the plaintiff to execute the orders of original suit in O.S.No.511/1997, wherein the President, Vice President and Secretary came to be named as judgment debtors. The main prayer in the execution petition

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was to arrest and put in detention the judgment debtors for having violated the terms and conditions of the judgment and decree and for attachment of properties. However, a final order dated 13.07.2016 came to be passed by the executing Court, which is impugned herein, wherein the executing Court by issuing notice to the judgment debtors has directed them to obey the decree in O.S.No.511/1997 and issue Nikha certificate of his daughter Smt.Zahara and her husband Mohammed Najeeb Jameel by recording their marriage in the concerned register, within a period of two months of passing of the order.

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On careful examination of the order passed by the executing Court, there are two limbs of order, one is directing the judgment debtors to obey the decree in O.S.No.511/1997 and the second limb is to issue Nikha certificate of the daughter of the plaintiff Smt.Zahara and her husband, Mohammed Najeeb Jameel by recording their marriage in the concerned register within two months of passing of the order.

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Admittedly, there is no decree passed in favour of daughter of the plaintiff with regard to registration of her marriage and her husband and recording their marriage in the

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concerned register, so also, the daughter of plaintiff, Smt.Zahara was neither the plaintiff along with original plaintiff in original suit nor she was impleaded in the suit. Therefore, it is apparently not in dispute that the plaintiff was only one person i.e. Sri Mohammed Iqbal Sait, who filed the original suit and his daughter namely, Smt.Zahara or her husband were not the parties to the original suit proceedings.

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The question before the executing Court is limited to the extent of passing any order to execute the decree passed in the original suit and cannot venture to go beyond that.

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It is not the case of the respondent/plaintiff that the daughter of the original plaintiff or her husband was a party in the original suit, thereby executing Court passing an order to issue a Nikha certificate of his daughter Smt.Zahara and her husband Mohammed Najeeb Jameel by recording their marriage in the concerned register is alien to the execution proceedings, as neither it was the subject in issue nor any order is passed in the judgment or decree in O.S.No.511/1997 to that effect. Hence, the question of executing Court ordering anything beyond what is ordered in the original suit is alien to

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the execution proceedings. However, the first limb of the order of the executing Court is required to be sustained namely, the judgment debtors to obey the decree in O.S.No.511/1997 with

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regard to what is ordered in the original suit. In view of the above, I am of the opinion that merely because the plaintiff has named the persons firstly and office of the persons thereafter in the cause-title would not go against the very intent of the suit and that defence cannot be taken by the petitioners in not obeying the order of the executing Court i.e. to follow the judgment and decree of the suit. However, this Court does not subscribe the fact that the plaintiff has not made the President, Vice President and Secretary as parties to the proceedings, which is required under law, as the office they hold will have to be made as parties and members assuming the office or representatives of the Office. Hence, it is required under the law as per Section 15 of the Karnataka Societies Registration Act, 1960, that while filing a suit, every suit would have to be filed in the name of the President, Vice President, Principal Secretary or Trustees as per the rules and regulations of the Society. However, the same would not assume much role in the present case for the reason that this is a simple suit filed by the

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plaintiff for a declaratory relief that he belongs to Cutchi Memon Jamath, Mysuru and to facilitate him to enjoy the benefit and privileges provided by Cutchi Memon Jamath, Mysuru. However, this Court is not in agreement to the second limb of the order passed by the executing Court which has gone beyond the decree passed in the original suit and the same requires to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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i) Civil Revision Petition is allowed-in-part ; ii) The order dated 13.07.2016 passed in Execution No.325/2015 by the Court of Principal I Civil Judge and JMFC, Msyuru, with regard to second limb of the order i.e. directing judgment debtors to issue Nikha certificate of the daughter of the plaintiff, Smt.Zahara and her husband, Sri Mohammed Najeeb Jameel by recording their marriage in the concerned register within two months of passing of the order, is hereby set-aside;

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iii) However, it is made clear that the daughter of the plaintiff namely, Smt.Zahara is at liberty to file a petition/application before the concerned Cutchi Memon Jamath, Mysuru, either at Mysuru or at Bengaluru, wherever she is residing, for enforcement of her rights which is available and provided in the bye-law of the Cutchi Memon Jamath, Mysuru and if any such petition/application is made, the concerned Society shall consider the same leniently in accordance with the rules and regulations established by it.

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In view of disposal of Civil Revision Petition in

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CRP.No.375/2016 today, the order which is challenged in WP.No.37640/2016 arising out of an application -IA.No.3 would not survive for consideration and the same stands disposed of accordingly.

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Sd/JUDGE

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List No.: 1 Sl No.: 32

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Mr Mohsin Sait v. Mohd Iqbal Sait

Case brief

What is this about?

What did the court decide?

Mr Mohsin Sait v. Mohd Iqbal Sait

Case brief

What is this about?

What did the court decide?

What the court decided

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