Co-Operative Vs. Nandlal [1950] INSC
24 (12 October 1950)
MAHAJAN, MEHR CHAND NAIK R.S.
CITATION: 1950 AIR 274 1950 SCR 741
ACT:
Co-operative Credit Societies Act, 1340 F.,
(Hyderabad), s. 42 --Award--Remission by Registrar to Civil Court for
execution-Powers of Registrar Installment decree--Default--Execution
proceedings for whole amount in Civil Court--Power of Registrar to accept Installment
and direct Civil Court to stop proceedings.
HEADNOTE:
Section 42 of the Co-operative Credit
Societies Act, 1340 (Hyderabad) provided as follows: "If an award given by
the Registrar or by a person nominated by him, or by a committee of arbitrators
is not acted upon, then the Registrar can have it enforced--(a) through a civil
court on a certificate issued by him. The civil court will treat the award in
the same way as its own decree;(b) through a Revenue Court or officer by
issuing a certificate to that court or officer." Held, that under the
section the Registrar was not in the same position as a court passing the
decree under the Civil Procedure Code in the matter of execution of the decree
and he does not possess all the powers of an executing court.
Where a dispute arose between a member of a
society and the society and an arbitrator appointed under the Act passed a
decree for payment of a certain sum in six monthly installments with a
condition that if default was made in the payment of any Installment the whole
amount will become due, and under the provisions of s. 42 the decree was sent
for execution to the Civil Court on a certificate of Registrar:
95 742 Held, that after a default had been
made in the payment of the first Installment and the whole decree debt had
become due and execution had been taken out for recovery of the whole amount,
the [Registrar had no power to accept the amount of first Installment and
direct the executing court to stop further proceedings, and the executing court
was entitled to ignore the Registrar's order and to proceed with the execution.
APPEAL under article 374(4) of the
Constitution from a judgment and decree of the High Court of Hyderabad dated
24th Aban 1356 F., in Civil Appeal No. 374/4 of 1356 F.
Devi Pershad, for the appellant.
Appa Rao and Sada Shiva Rao, for the
respondent.
1950. October 12. The judgment of the Court
was delivered by MAHAJAN J.--This appeal arises out of execution proceedings of
a decree passed by an arbitrator under the Co-operative Credit Societies Act.
The appeal was presented to the Judicial Committee of the State and is now
before us under article 374 (4) of the Constitution.
Raja Nandial was a member of the
decree-holder society and was also its debtor. A dispute arose between him and
the society and under the rules governing such societies the matter was
referred to arbitration. The arbitrator on the 19th Meher 1352 F., passed a
decree against him in the sum of Rs. 8,100 payable in equal six monthly Installments
with six per cent. interest, the first Installment being payable at the end of
Azur 1353 F. On the 2nd Dai 1353 F., under the provisions of section 42, clause
(d), of the Co-operative Societies Act the decree was sent for execution to the
civil court on a certificate issued under the signature of one Moulvi Mohammed
Hasan, Madadgar Nazim. The amount recoverable was stated as Rs. 8,100 principal
and Rs.
6669-0 interest. On the same day the
decree-holder presented an application for execution of the decree to the Civil
Court, Balda. claiming recovery of Rs. 10,339-14-9. It was alleged that as
default had been committed in the payment of 743 the first Installment due in
the month of Azur 1353 F, the whole decretal amount had become recoverable. It
was prayed that the property detailed in the application be attached.
On 3rd Dai 1353 F., i.e., a day after the
presentation of the application for execution, the judgment debtor deposited a
sum of Rs. 1,000 towards the first Installment in the Office of the Registrar
of Co-operative Societies and expressed his will lingness to deposit any
further amount that may be due towards that Installment. The Nazim's office
stated in reply that as he had committed default in the payment of the first Installment
the whole decree had become due and the amount of Rs. 1,000 could not be
accepted.
Subsequentiy, however, on the 5th Dai 1353 F,
a letter was issued by one Mohammed Aihsan, Assistant Madadgar Nazim, to the
Civil Court, Balda, saying that Rs. 1,034 had been deposited in the Office of
the Nizamat Co operative Credit Societies and therefore the proceedings in execution
should be stayed or adjourned. On receipt of the letter in the civil court, the
decree-holder raised an objection that the Registrar had no jurisdiction to
stay execution of the decree as he was not an executing court. This objection
was overruled by the court and it was held that under the provisions of section
42 of the Co-operative Credit Societies Act the Registrar retained the power of
staying execution of the award decree even after the issue of a certificate by
him.
In the result the execution proceedings were
stayed.
Against this order an appeal was taken to the
Sadar Adalat.
The Sadar Adalat allowed the appeal partially
and held that to the extent of the payment made the decree could not be
executed but it could be executed with respect to future Installments as and
when they would fall due. It further found that the default clause in the
decree must be taken to have been condoned by the deposit of the first Installment
in the office of the Registrar. The decree-holder preferred a second appeal to
the High Court but without any material success. The High Court held that there
had been a default in the payment of the first Installment 744 and the
decree-holder had thus a right to execute the whole decree and that neither the
Registrar nor the executing court could deprive the decree-holder of that
right. In spite of this finding it took the view that the Registrar still
retained jurisdiction to adjourn execution proceedings. The contention of the
judgment-debtor that the certificate was bad as having been issued by a
Madadgar Nazim was negatived. It was held that the Madadgar Nazim had delegated
powers in this respect and that the defect, if any, stood cured by a fresh
certificate signed by the Nazim himself. The result was that with these findings
the decision of the executing court adjourning the execution proceedings was
maintained.
The first point for consideration in this
appeal is as regards the jurisdiction of the Registrar functioning under the
Co-operative Credit Societies Act in respect to execution of decrees. The
decision of this question depends on the interpretation to be placed on the
language employed in section 42, clause (d), of the Cooperative 'Credit
Societies Act, 1340 F., as amended. This section is in these terms :"If an
award given by the Registrar or by a person nominated by him, or by a committee
of arbitrators is not acted upon, then the Registrar can have it enforced(a)
through a civil court on a certificate issued by him. The civil court will
treat the award in the same way as its own decree;
(b) through a Revenue Court or officer by
issuing a certificate to that court or officer." The language employed in
this section does not place the Registrar on the same pedestal as a court
passing the decree under the Civil Procedure Code. Under the Code a civil court
passing a decree is also the court executing the decree. It has a dual
capacity, (1) of the court passing the decree, and (2) of the executing court.
The Registrar, it appears, has the first capacity of a civil court but he has
not been placed in the matter of execution in the same capacity as a civil
court passing a decree. The only 745 jurisdiction conferred on the Registrar is
that he can issue a certificate and on that certificate he can send a decree
either to the civil court or to a revenue officer. It may be that after issuing
a certificate he may be entitled to cancel the certificate or issue another, or
he may by withdrawing the certificate withdraw execution from a civil court and
send it to a revenue court and vice versa. On the plain words of the section it
cannot be held that the Registrar has been constituted an executing court or
that any powers in the matter of the execution of the award decree have been
conferred upon him. The question that arises for consideration is whether in
view of this construction of the section it was open to the Registrar to
intervene during execution proceedings that were pending in a civil court on
the basis of the certificate granted by him. In order to determine this point
it is necessary to see precisely what the Registrar actually did in this case.
After a default had been made in the payment of the first Installment and the
whole decree debt had become due and execution had been taken out for recovery
of the amount, the Registrar accepted the amount of the first Installment and
asked the executing court to stop further proceedings. The act of the Registrar
in accepting the first Installment was a clear trespass on the duties of the
executing court. It is only in the executing court where payment towards
satisfaction of the decree, the execution of which had been taken out, could be
made, unless the court passing the decree has also the jurisdiction to execute
it. As already indicated,, this jurisdiction is not possessed by the Registrar.
That being so, in our opinion, the requisition of the Registrar to the
executing court to stop execution proceedings and his act in accepting the
first Installment were in excess of the jurisdiction conferred on him and the
executing court was entitled to ignore it. Moreover, the Registrar could not
alter or amend the decree passed by the Arbitrator at this stage.
All the courts below have interpreted the
section to mean that the Registrar as the court passing the 746 decree has the
same power as the court executing it. We are unable to agree in this view in
view of the clear language employed in the section. The analogy of decisions
given in respect of civil courts is not available in interpreting this Act.
Under the Civil Procedure Code the parent court, i.e., the court passing the
decree, always retains jurisdiction to execute the decree even if it has been
transferred to one or more courts for the purpose of execution. Primarily it is
the function of the court passing the decree to execute it but when it is found
that it is not possible for it to effectively execute it provision has been
made in the Code authorising it to send it to other courts the purpose of
execution; but none of these provisions in any way affect the jurisdiction of
the court passing the decree to execute it whenever it thinks fit to do so and
the order transferring execution to other courts does not take away its
jurisdiction in the matter. The position however in the case of the Registrar
is entirely different.
He himself has been given no jurisdiction to
execute his own decree. The only power conferred on him is to get it realized
through a civil court or a revenue court and the only authority conferred on
him is to issue a certificate for that purpose.
The High Court in this case has, in our
opinion given a decision contradictory to its own findings. It has been held
that the first appellate court was in error in the view that the default clause
in the decree stood condoned by the payment of the first Installment by the
judgment debtor in the office of the Registrar and it has been positively found
that once a default has been made the Registrar had no jurisdiction to condone
it and that the decree-holder was entitled to execute the decree for the full
decretal amount with interest. Having reached this conclusion the High Court
still maintained the decision of the two courts below adjourning the execution
proceedings.
The logical result of the High Court's
decision is that the certificate stands and the execution application has been
properly made and the decree-holder is entitled to the relief claimed but in
spite of it it has been held 747 that the Registrar can stay the proceedings.
It seems to us that the act of the Registrar in asking the civil court to stay
execution proceedings pending before it is a clear encroachment on the powers
of the executing court and is in excess of his statutory powers and should. have
been ignored by the courts.
As a fresh certificate was issued by the
Nazim in order to cure a defect that might be said to exist in the original
certificate because of its having been sent by the Madadgar Nazim, it is
unnecessary to consider the contention of the learned counsel that there was no
proper certificate in this case and the proceedings in execution therefore were
without jurisdiction.
The result therefore is that this appeal is
allowed, the decisions of all the three courts below are set aside and the
executing court is directed to proceed with the execution of the decree from
the stage at which it was interfered with by the letter received from the
office of the Registrar. In the circumstances of this case we will make no order
as to costs of the proceedings throughout.
Appeal allowed.
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