SHANTINIKETHAN CO-OPERATIVE Vs. RAGHAVENDRA AND ORS

JUDGEMENT

(1.) The plaintiffs have filed this appeal challenging the judgment/decree of the Appellate Court dismissing the appeal filed by them under Section 96 of CPC and confirming the order passed on A. No. 2 by the Trial Court, whereby, the plaint was rejected 'as barred by law'. The appellants filed the suit to pass a decree of declaration that the judgment dated 28.08.1990 passed in Appeal No. 451/1988 by the Karnataka Appellate Tribunal (for short 'the Tribunal') is inexecutable decree and pass a decree of permanent injunction restraining the defendant from executing the decree in E.P. No. 391/2002.

(2.) In order to appreciate the point involved in this appeal, a few relevant facts need to be stated in brief. Appellant-plaintiff (for short 'the society') is a registered Co-operative Society, under the Karnataka Co-operative Societies Act, 1959 (for short 'the Act'). The defendant -respondent is its Member and in the matter of non-allotment of a site, had raised a dispute under Section 70 of the Act, in No. ADN 386/85-86, before the Assistant Registrar of Co-operative Societies at Bijapur, against the appellant. The dispute was rejected as per an award dated 28.04.1988. Assailing the award, Appeal No. 451/1988 was filed, under Section 105 of the Act, before the Tribunal. The appeal was allowed on 28.08.1990 and the Society was directed to allot a plot/site on payment of the charges. The judgment/award passed by the Tribunal became final. A certificate was issued to the respondent by the Assistant Registrar of Co-operative Societies at Bijapur, on 20.08.2001, under Section 101(a) of the Act. In pursuance thereof, E.P. No. 391/2002 was filed, in the Court of Additional Civil Judge (Sr.Dn.), at Bijapur, to execute the judgment/award dated 28.08.1990 passed in Appeal No. 451/1988 by the Tribunal. Notice of the execution petition having been served on the society, objections were filed. By an order dated 28.08.2007, II Additional Civil Judge (Sr.Dn.), Bijapur, held that the execution petition is maintainable and the judgment/award passed by the Tribunal is executable. The Society was directed to allot a plot in favour of the respondent. Assailing the said order, W.P. No. 16498/2007 was filed by the society and the same was dismissed on 17.02.2010.

(3.) O.S. No. 8/2008 was filed on 09.01.2008 by the society, to declare that the judgment/award passed by the Tribunal, dated 28.08.1990, in Appeal No. 451/1988, is un-executable decree and pass a decree of permanent injunction and restrain the defendant from executing the decree, in E.P. No. 391/2002, on the file of the II Additional Civil Judge (Sr.Dn.), Bijapur. I.A. No. 2 was filed by the defendant, under Order 7 Rule 11(a) and (d) of CPC, to reject the plaint. Statement objections was filed by the plaintiffs to I.A. No. 2.