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Superior Court of New Jersey, Appellate Division.

HARDYAL S. JOHAL, HARI S. SANGHA and INDERJIT SINGH, individually and on behalf of DASMESH DARBAR, INC., Plaintiffs–Appellants, v. BARJINDER S. BRAR and SATNAM S. VIRK in their capacities as members of the Supreme Council of DASHMESH DARBAR, INC., Defendants–Respondents.

DOCKET NO. A–0349–12T2

    Decided: March 18, 2014

Before Judges Fuentes, Simonelli and Fasciale. Ravinder S. Bhalla argued the cause for appellants (Florio Perrucci Steinhardt & Fader, LLC, attorneys;  Mr. Bhalla, on the briefs). Steven R. Klein argued the cause for respondents (Cole, Schotz, Meisel, Forman & Leonard, P.A., attorneys;  Mr. Klein, of counsel and on the brief;  Michael R. Yellin, on the brief).

We incorporate herein our opinion rendered simultaneously herewith in the appeal entitled Brar v. Khatra, Docket No. A–4217–11 (the underlying matter).   Here, plaintiffs Hardyal S. Johal, Hari S. Sangha, and Inderjit Singh appeal from the August 3, 2012 order, which dismissed their amended complaint against defendants Barjinder S. Brar and Satnam S. Virk with prejudice.

The March 12, 2012 final judgment Judge Joseph Messina entered in the underlying matter provided, in relevant part, that the 2003 bylaws governed;  plaintiff and defendants constituted the Supreme Council;  the Supreme Council and General Body Council (GBC) would continue serving until the election of a new eighteen-member GBC by the General Body and a new Supreme Council by the GBC;  and the elections would be held no later than April 15, 2012.

On March 26, 2012, plaintiffs filed a motion in the underlying matter for a new trial and/or to amend that part of the final judgment concerning the elections.   Prior to disposition of the motion, on April 4, 2012, plaintiffs filed an order to show cause and verified complaint in this matter, seeking to preliminarily enjoin the election, which had been scheduled for April 6, 2012, among other relief.   At oral argument of the order to show cause on April 5, 2012, Judge Glenn Berman questioned why plaintiffs filed a new complaint instead of seeking relief from Judge Messina.   Judge Berman denied preliminary restraints, and made the order to show cause returnable before Judge Messina on April 10, 2012.

The election occurred on April 6, 2012.   Judge Messina denied plaintiffs' order to show cause, finding that the election was held in accordance with the procedures in the 2003 bylaws.   In an April 12, 2012 order, the judge declared the election valid and binding.1

Plaintiffs did not challenge the April 12, 2012 order.   Instead, on May 29, 2012, they filed an amended complaint in this matter, primarily seeking to invalidate the election based on defendants' alleged violation of the final judgment.   Defendants filed a motion to dismiss the amended complaint pursuant to Rule 4:6–2(e), arguing, in part, that it was an improper collateral attack on the final judgment.   In opposition, plaintiffs confirmed that the amended complaint was

an election challenge seeking compliance with the plain terms of the Final Judgment, not an attack on it.   As alleged in the Amended Complaint, Defendants have committed routine violations of the terms of the Final Judgment and engaged in related ultra vires conduct which has caused substantial harm to the rights of Plaintiffs, [the corporation], its membership and congregation, and for which Plaintiffs seek appropriate relief.

In an August 3, 2012 order, Judge Berman dismissed the amended complaint with prejudice.   The judge found it was procedurally improper to challenge the final judgment by filing a new complaint, and plaintiffs should have filed a motion for relief in aid of litigant's rights in the underlying matter to enforce the judgment.2  On appeal, plaintiffs contend that the judge erred in raising this issue sua sponte and dismissing the amended complaint on this basis.   We disagree.   Judge Berman raised this issue on April 5, 2012, and sent the show cause to Judge Messina for disposition.   Thus, plaintiffs were well-aware of Judge Berman's procedural concerns.

That having been said, Rule 1:10–3 states, in pertinent part, as follows:

Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action.   A judge shall not be disqualified because he or she signed the order sought to be enforced.   If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution.   The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule.

[R. 1:10–3.]

“The scope of relief in a motion in aid of litigants' rights is limited to remediation of the violation of a court order.”  Abbott v. Burke, 206 N.J. 332, 371 (2011).  “Relief under R. 1:10–3, whether it be the imposition of incarceration or a sanction, is not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of the court order.”  Ridley v. Dennison, 298 N.J.Super. 373, 381 (App.Div.1997).   Accordingly, a motion to enforce litigants' rights is the appropriate vehicle to enforce a prior order.  Abbott, supra, 206 N.J. at 359;  Loigman v. Twp. Comm. of Middleton, 308 N.J.Super. 500, 503 (App.Div.1998).  “A claim that a party, ․ is acting in violation of court order ordinarily should be brought before the court that issued that order.”  Asbury Park. Bd. of Educ. v. New Jersey Dep't of Educ., 369 N.J.Super. 481, 486 (App.Div.2004).

Plaintiffs' amended complaint clearly sought to enforce the final judgment in the underlying action.   Plaintiffs, thus, should have filed a motion for relief in aid of litigants' rights in that action.   Accordingly, we affirm on that basis.

However, plaintiffs should not be precluded from seeking to enforce the final judgment.   Since we have affirmed the final judgment in our companion opinion, plaintiffs may file a motion for relief in aid of litigants' rights in the underlying matter.   We express no view on the merits of that application.



1.  FN1. In a separate April 12, 2012 order, the judge denied plaintiffs' post-trial motions.

2.  FN2. Defendants had also argued that the doctrines of res judicata and issue preclusion barred the amended complaint.   Judge Berman did not dismiss the amended complaint on these grounds, and defendants did not cross-appeal.   Thus, we decline to address these issues.


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