High Court · 2009

Heard Mr NN Jha, learned counsel for the petitioner, Mr A Satter, learned counse l for the respondent No 5 and Ms VL Sinha, learned GA, Assam, for the official r espondents. Challenging the order dated 21.8.2009 passed by the learned Munsiff No 3 , Guwahati, in Misc (J) Case No 579/2009, the petitioner has filed this writ pet ition under Articles 226 and 227 of the Constitution of India. Averments made in the pleadings and materials on records disclose that Title Sui t No 329/2006 was filed by the respondent No 5 in the Court of the learned Munsi ff No 3, Guwahati wherein the Assam Swimming Association was impleaded as defend ant No 1. The said suit was decreed on 7.1.2009. The decree was put into executi on and T Ex Case No 12/2009 was registered. Sensing certain mischief that may be committed by the defendant judgment debtor to frustrate the judgment, the decre e holder filed Misc Case No 579/2009. In the said Misc (J) case an injunction wa s granted by the learned Court below restraining the opposite party judgment deb tor from holding any aquatic meet until further order. Against the said order, t he present petitioner / judgment debtor No 1 has filed this petition under Artic les 226 and 227 of the Constitution of India. The contention of the learned counsel for the petitioner is that althoug h the petitioner has filed two caveat petitions before the learned Munsiff, the order dated 20.8.2009 was passed by-passing the caveats. It is further contended that the decree was obtained by the respondent No 5 is an ex parte decree and h e obtained the decree by misleading the Court by filing petitions one after anot her. Further the impugned order of injunction does not disclose any valid reason . While the petition was moved on 3.9.3009, the petitioner was also successful i n obtaining an interim order allowing them to conduct All Assam Inter District A quatic Meet, 2009 on 5th and 6th September, 2009. However, the Court restrained that the results thereof shall not be acted upon by the petitioner or body or as sociation or any one else without the leave of the Court. By filing another Misc Case No 2494/2009, the petitioner has prayed for modification of the interim or der allowing them to send the list of selected swimmers for participating in sen ior aquatic championship, 2009. Mr A Satter, learned counsel for the respondent No 5 and the learned Sta te Counsel have not only vehemently objected the prayer made in the Misc Case bu t they also raised objection about the maintainability of the petition. Learned counsel submit that the petitioner is a judgment debtor in TS No 329/2006 agains t whom the decree was passed and the said decree was put to execution. During th e pendency of the execution proceeding in T Ex No 12/2009, the decree holder, re spondent No 5, has also filed an application for injunction vide Misc (J) Case N o 579/2009. In the said injunction petition, the judgmen debtors 3 and 4 were im pleaded as opposite party Nos 1 and 2. Accordingly, the petitioner / judgment de btor is not impleaded as a party to the proceeding of the Misc Case. In such a s ituation, even if the petitioner filed the caveat, the learned trial Court was w ell within its jurisdiction in not taking cognizance of the same. It is further contended by the learned counsels that having lost in the suit his application for setting aside the ex parte decree was dismissed on withdrawal. The decree pa ssed in TS No 329/2006 stands and no appeal has been filed by the petitioner aga inst the said decree. It is contended by Mr Jha that the present petition has been filed by th e ad hoc Assam Swimming Association and in the suit defendant No 1 is only Assam Swimming Association, hence, these two bodies are different accordingly the pet itioner is entitled to approach this Court to exercise their independent rights . The learned counsel, however, did not disagree that in the application filed f or injunction registered as 517/2009, the petitioner is not a party. I have considered the contentions and rival submissions made by the lear ned counsel for the parties. It is an admitted factual position that TS No 329/2 006 was decreed and the Assam Swimming Association being defendant No 1is also j udgment debtor. Accordingly, the decree passed in the said suit squarely binds t hem unless the decree is set aside by the higher Court. Although the learned cou nsel for the petitioner tried to differentiate that the ad hoc Assam Ad hoc Swim ming Association and the Assam Swimming Association are two different bodies, bu t it is the fundamental that when a body or association is impleaded whole as pa rty respondent, it will also covers its ad hoc bodies. Consequently, the content ion of the learned counsel for the petitioner that the defendant No 1 judgment d ebtor or its ad hoc committee are two different bodies, stands rejected. In view of the aforesaid situation the judgment debtor defendant No 1 in order to by-pa ss the decree or order of injunction has approached this Court by filing this pe tition. It s also to be pointed out that the jurisdiction of Article 226 and tha t under Article 227 is different one and both the Articles would not be availabl e to the petitioner to challenge the impugned order. The petitioner not having i mpleaded as party in the injunction petition, the learned trial Court has rightl y ignored the caveat filed by the him That apart, the order passed by the learne d trial Court cannot be said to be unjust and improper in the facts and circumst ances of the case, more particularly, in existence of a valid decree passed by t he competent Court. Upon scrutiny of the impugned judgment, I do not find that t he learned trial Court has committed any jurisdictional error in passing the imp ugned order justifying interference in exercise the supervisory jurisdiction of this Court. In that view of the matter, I do not find any merit in this writ petitio n and it stands dismissed. Consequently, the interim order dated 3.9.3009 passed by this Court stands vacated and no benefit whatsoever resulted by virtue of th e interim order would be available to anybody.