A. Co-operative Societies Act, 1960 — S. 91 — Execution of decree — Decree for allotment of plot passed by Co-operative Court — Plea of inexecutability — Alleged merger of plots and construction — Effect of.
Where the Co-operative Court decreed allotment of a specified plot (Plot No. 5A) to the member, and execution was resisted on the ground that said plot had lost identity having merged with adjoining plots and constructions raised thereon — Held, such objection was untenable when (i) no merger had been sanctioned by competent authority, (ii) alleged constructions were unauthorised, and (iii) photograph showed substantial open area still existing — Held, decree executable. Directions issued to remove minor covered passage on Plot No. 5A and hand over clear and vacant possession thereof to decree-holder-member.
[Paras 5–12]
B. Civil Procedure Code, 1908 — S. 47 — Executability of decree — Plea of impossibility due to third-party constructions — When not sustainable.
Existence of some structures or subsequent transfers cannot render decree inexecutable where such constructions are unauthorised and plot remains identifiable — High Court justified in rejecting society’s objections and imposing costs for frivolous litigation — Affirmed.
[Paras 3.4, 5, 11–12, 14]
C. Intervention — Scope of — Protection of third-party rights.
Intervening shop owners found to be occupying Plots Nos. 4 and 4A, not the disputed Plot No. 5A — Hence, directions for demolition and allotment confined strictly to Plot No. 5A — Rights and possession of intervenors over Plots 4 and 4A unaffected.
[Para 13]
JUDGMENT SUMMARY (Structured)
Per Vikram Nath, J. —
Leave granted.
Appeals were preferred by Southern Nagpur Co-operative Society Ltd. against the judgment of the Bombay High Court (Nagpur Bench) dated 01.09.2017 in Civil Revision Application No. 14 of 2016, dismissing the revision with costs of ₹25,000, and its review dated 20.02.2019.
Facts.
Respondent, a member of the appellant-society, claimed allotment of plots in the society layout.
Dispute before Co-operative Court (Case No. 924/1991) — initially concerning Plots Nos. 3 and 4; amended in 1996 to claim Plot No. 5A.
Award (31.03.2000): Co-operative Court directed society to allot Plot No. 5A to respondent.
Appeal dismissed (20.04.2002).
High Court in W.P. No. 4441/2002 permitted raising execution objections.
Execution proceedings (S.D. No. 200/2000).
Society objected that Plot No. 5A merged with Plots 4 and 4A, hence decree inexecutable.
Executing Court accepted objection (27.04.2011).
On appeal, District Judge-9, Nagpur (16.10.2015) reversed, holding:
No merger approved by competent authority;
Constructions illegal;
Plot 5A remains identifiable;
Decree executable.
High Court Judgment (01.09.2017):
Revision dismissed with costs ₹25,000; findings of Appellate Court affirmed.
Supreme Court Proceedings.
Appeals by Society; connected petitions by members and shop owners (intervenors) claiming interest in Plots 4, 4A, 5A.
Contentions:
Appellants: Plot 5A lost identity in 1985; merged; sanctioned construction; impossible to execute decree.
Respondent: Plot 5A intact; constructions unauthorised; society evading decree for 25 years.
Finding:
Photograph on record showed substantial open area still available.
Covered passage on Plot 5A not integral to community hall and can be removed.
Plot 5A identifiable; decree executable.
Direction:
Covered passage on Plot 5A to be removed forthwith.
Plot 5A to be allotted and vacant possession handed over to respondent.
Intervenors:
Shop owners on Plots 4 & 4A unaffected; their occupation to remain undisturbed.
held that :
No error in High Court judgment.
Appeals dismissed.
Directions and clarifications issued.
Intervention applications rejected; all pending applications disposed of.
Held
“In view of the admitted position reflected in the photograph, this Court finds no justification for the continued existence of the said covered passage on the disputed land. Accordingly, it is directed that the said construction, not being integral to the main building, shall be removed forthwith. Upon such removal, Plot No. 5A shall be allotted and clear and vacant possession to be handed over to the Respondent.”
— Per Vikram Nath, J.
Result : Appeals dismissed — Directions issued to remove covered passage and hand over Plot No. 5A — Intervenors protected — No costs.
2025 INSC 1226
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 1 of 9
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS…………………………..OF 2025
(ARISING OUT OF SLP(C) NOS.22904-22905 OF 2019)
THE SOUTHERN NAGPUR
CO-OPERATIVE SOCIETY
LIMITED …APPELLANT
VERSUS
GANPATI YADAVRAO KUMBHARE
AND ANR. …RESPONDENTS
WITH
CIVIL APPEAL NOS…………………………..OF 2025
(ARISING OUT OF SLP(C) NOS.22902-22903 OF 2019)
J U D G M E N T
VIKRAM NATH, J.
1. Leave granted.
2. The Appellant, Southern Nagpur Co-operative Society
Limited, has preferred these appeals assailing the
correctness of judgment and order dated 01.09.2017
passed by the High Court of Judicature at Bombay,
Nagpur Bench in Civil Revision Application No.14 of 2016
whereby the said revision preferred by the appellant was
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 2 of 9
dismissed with costs of Rs.25000/-. The Review Petition
filed by the Appellant was also dismissed by the High
Court vide order dated 20.02.2019.
3. The relevant facts necessary for proper adjudication of
these appeals are as follows:
3.1. The Respondent, Ganpati Yadavrao Kumbhare
(hereinafter referred to as 'Respondent'), was a
member of the Appellant Society. A dispute arose
between the Respondent and the Appellant with
respect to the allotment of plots. The said dispute
was raised by the Respondent before the
Cooperative Court, Nagpur which was registered as
Case No.924 of 1991 with respect to allotment of
Plot Nos. 3 and 4 of the Society's layout. Later on,
by way of amendment in 1996, the Respondent was
permitted to lay his claim for allotment of Plot No.5A
instead of Plot Nos.3 and 4.
3.2. Before the Cooperative Court, the Appellant
contested the claim of the respondent. However,
after considering the material on record, the
Cooperative Court allowed the dispute and passed
an award dated 31.03.2000 directing the Appellant
to allot Plot No.5A to the Respondent. The decree of
the Cooperative Court was assailed before
Cooperative Appellate Court which appeal was
dismissed vide order dated 20.04.2002.
3.3. The Appellant thereafter preferred writ petition
before the High Court registered as W.P. No. 4441 of
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 3 of 9
2002. The said petition was disposed of by the High
Court vide order dated 07.10.2006. Before the High
Court, objection was taken by the Appellant that the
decree was not executable. The High Court granted
liberty to the Appellant to raise the objection before
the Executing Court which would examine the
same.
3.4. The execution proceedings initiated by the
Respondent were registered as S.D. No. 200 of 2000.
An objection was raised by the Appellant that the
decree was inexecutable as Plot No.5A of the
society's layout had lost its identity having been
merged with Plot Nos.4 and 4A. Thereafter, building
plans over the consolidated plot have been approved
by the local authorities, hence no allotment could be
made in favour of the Respondent nor could
possession of such plot be given. The Executing
Court sustained the objections of the Appellant vide
order dated 27.04.2011 and closed the execution
proceedings.
3.5. The Respondent challenged the order of the
Executive Court before the District Judge, Nagpur
by way of appeal. The same was transferred to the
Court of District Judge-9, Nagpur, and was
registered as Appeal No.120 of 2013. The Appellate
Court vide judgment dated 16.10.2015 came to the
conclusion that the objection raised by the
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 4 of 9
Appellant could not be sustained for multiple
reasons namely:
i) The objections that Plot No.5A had lost its
identity having been merged with Plot Nos.4
and 4A were not raised before the Cooperative
Court or the Cooperative Appellate Court.
ii) The merger of these three plots was never
approved by the competent authority.
iii) The alleged constructions were illegal and
without any sanction of the building plans.
iv) Even if some constructions had been raised,
they being clearly illegal were liable to be
demolished and clear and vacant possession of
Plot No.5A with its due area was liable to be
allotted and handed over to the respondent.
3.6. Aggrieved by the aforesaid Appellate order, the
Appellants approached the High Court by way of
Civil Revision. The said revision has been dismissed
by the impugned judgment and order dated
27.04.2011 with costs of Rs.25,000/- as the High
Court found the conduct and the claim of the
Appellant to be frivolous and malicious. Aggrieved
by the same, the present appeals have been
preferred by the society.
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 5 of 9
3.7. The High Court has concurred with the findings of
the Appellate Court, the details of which we have
already noted in the previous paragraphs.
3.8. There are other petitions filed by third parties
challenging the order of the High Court details of
which are as follows:
i) SLP Nos. 22902-22903 of 2019 have been
preferred by Prakash Namdeorao Dhage, a
member of the Appellant-Society and owner of
a shop allegedly constructed on Plot No. 5A.
ii) I.A. No. 214110 of 2025 was filed for
intervention in SLP (C) Nos. 22902-22903 of
2019 by Shop Owners who are running their
shops allegedly constructed on Plot No. 5A and
were not made parties to the main proceedings.
These Applicant Nos. 1-7 are: Preeti Rashmi
Vasudeo Dhanwai, Owner of Shop No. 1 FF;
Raveesh Vasudeo Dhanwani, Owner of Shop
No.2 FF; Pravin Dinkarrao Mehar, Owner of
Shop Nos. 3, 5 and 6 FF; Neena Vinay Nagdeo,
Owner of Shop No. 7 FF; Anirudha Vasant
Nagdeo, Owner of Shop No.8 FF; Sunil
Sadashivrao Raut, Owner of Shop No.2 GF and
Anant Keshavrao Borkar, Owner of Shop No.9
GF.
iii) I.A. No. 213605 of 2025 in SLP (C) Nos. 22904-
22905 of 2019 was filed by active members of
the Appellant-Society who have shares in the
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 6 of 9
Plot No. 5A. The Applicant Nos. 1-13 are:
Ratnashekhar Hiralal Mitkary, Jayant
Keshavrao Harde, Suhas Gulabrao Barai,
Jayant Chandrashekhar Deo, Sunil Arvind
Lanjewar, Pradeep Ganpatrao Ghode, Avinash
Wamanrao Singam, Rajesh Vasantrao
Puranik, Deepashri Deepak Munje, Prakash
Narayan Shrikrishna Kashiv, Dilip Shankarrao
Sambare, Rajendra Manohar Wadi, Durvesh
Bhupesh Mehar.
4. We have heard Mr. Shyam Divan, Mr. S. R. Singh, Mr.
Sanjay Hegde, Mr. Sanjay M. Nuli, Mr. Ravi Prakash
Mehrotra and Mr. Rahul Kaushik, learned senior counsel
for the Appellants and Intervenors opposing the order of
the High Court. On behalf of the Respondents, we have
heard Shri Balbir Singh, learned senior advocate.
5. The main thrust of arguments advanced on behalf of the
Appellants are two-fold. Firstly, that Plot No.5A had lost
its identity in 1985 much before the dispute was raised
by the Respondent in 1991. In support of the said
submissions, reliance has been placed upon resolution of
the society and some documents of the local authorities
with respect to some sanction plans. Secondly, huge
construction has been raised over the Plot No.5A which
stood merged with two other plots being Plot Nos.4 and
4A and thereafter, transfers have been effected in favour
of third parties by the Society as such the decree is
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 7 of 9
completely inexecutable. In fact, it is an impossibility, as
the constructions having been raised in accordance to law
could not be removed or demolished in execution of a
decree where such transferees were not even parties.
6. On the other hand, Mr. Balbir Singh, on behalf of the
Respondent submitted that Plot No.5A is still available for
allotment, sale and handing over of the possession.
7. Both the sides have relied upon the same photograph in
support of their respective submissions. According to the
said photograph, there is an open piece of land on the
extreme left with slight construction having come up on
the right end of the said open plot. Further to the right,
there are double triple storied building comprising of
shops, residences and a community hall.
8. According to Mr. Balbir Singh, the small portion covering
the Plot No.5A is only the passage which is a covered
passage going to the community hall which can be very
easily removed, and the Appellant can always find a
frontage or access to the community hall leaving Plot
No.5A intact.
9. It is also submitted that at no point of time there has been
a valid merger of the three Plots 4, 4A and 5A as alleged
by the Appellant in the year 1985. It is also submitted
that all the constructions raised are unauthorised and
relevant documents have been referred to show that the
local authority had rejected the plan for construction
submitted by the Appellant. Lastly, it has been submitted
that as the value of the land has substantially enhanced,
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 8 of 9
the Appellant is deliberately avoiding complying with the
decree of the Cooperative Court and the Respondent has
not been able to reap its benefits for the last 25 years
despite the decree of the Cooperative Court.
10. We have heard learned counsel for the parties.
11. The photograph placed on record and relied upon by both
parties clearly depicts that a substantial portion of the
land in question remains open and unoccupied. It is
observed that an open area exists towards the extreme
left of the plot, while minor construction has been raised
towards the right end of the said open space. The said
construction appears to be in the nature of a covered
passage providing access to the community hall. Upon
perusal of the record, it is evident that the existence and
nature of this structure are not in dispute between the
parties.
12. In view of the admitted position reflected in the
photograph, this Court finds no justification for the
continued existence of the said covered passage on the
disputed land. Accordingly, it is directed that the said
construction, not being integral to the main building,
shall be removed forthwith. Upon such removal, the Plot
No.5A shall be allotted and clear and vacant possession
to be handed over to the Respondent.
13. It is further clarified that the shop owners who have
intervened in the present appeal shall not be affected by
the present order. The said intervenors are occupants of
C.A.Nos.@ SLP(C) NOS.22904-22905 OF 2019 Page 9 of 9
shops situated on Plot Nos. 4 and 4A, and not on Plot No.
5A, which is the subject matter of the present
proceedings. The direction for removal of the structure
standing on Plot No. 5A and the consequent allotment
and handing over of possession thereof to the Respondent
shall have no bearing on the rights, interests, or
possession of the said shop owners. Their existing
occupation and enjoyment of Plots Nos. 4 and 4A shall
remain undisturbed.
14. We find no error or infirmity in the order passed by the
High Court warranting interference. The Civil Appeals
are, accordingly, disposed of with the directions as noted
above. Application(s) for intervention is/are rejected.
Pending applications, if any, are hereby disposed of.
..……………………….J.
[VIKRAM NATH]
..……………………….J.
[SANDEEP MEHTA]
NEW DELHI;
OCTOBER 09, 2025.
