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Muppanna Malkappa Humbi Vs. Shree Gajanan Urban Co-operative Bank, Ltd. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1035 of 1943
Judge
Reported inAIR1947Bom375; (1947)49BOMLR168
AppellantMuppanna Malkappa Humbi
RespondentShree Gajanan Urban Co-operative Bank, Ltd.
DispositionAppeal dismissed
Excerpt:
.....co-operative societies act, 1925, the award made under section 54 of the act does not become a decree of a civil court. - - even assuming that the point was decided in that darkhast, that decision was, in our opinion, clearly wrong. it is a well-established rule of law in cases which are not governed by section 28, limitation merely bars the remedy but does not extinguish the title. section 51 of the civil procedure code enumerates the various ways in which a decree of a civil court can be executed, and it is well recognised that it is open to the decree-holder to pursue all or any of his remedies at the same time or even the same remedy at different places. 355) :a person who is entitled to complain of a conversion of his property, but who prefers to waive the tort, may do so and..........appeal is that the civil court having held in darkhast no. 193 of 1937 that the execution of the award decree was barred by time, that decision was binding upon the bank and that therefore the registrar had no right to revive a dead claim by issuing a certificate under section 59(1)(b) of the act. in this connection it has got to be remembered that the civil court did not hold that the claim upon the award was barred by time. when the matter went in appeal to the district court in appeal no. 253 of 1937, it was submitted before the learned judge that the appeal might be dismissed provided the question of limitation was kept open. both the parties agreed in that submission and therefore it cannot be held that the civil court had come to the conclusion that the darkhast was time-barred......
Judgment:

Rajadhyaksha, J.

1. This is an appeal against the order passed by the First Class Subordinate Judge with appellate powers, Dharwar, reversing the decree of the Subordinate Judge of Haveri in Suit No. 139 of 1941. The trial Court had decreed the plaintiffs' suit but the First Class Subordinate Judge reversed that decree and dismissed the plaintiffs' suit with costs in both Courts. The plaintiffs have now come in second appeal.

2. In Suit No. 139 of 1941, out of which this second appeal arises, the facts were these. On September 1, 1929, Shri Gajanan Urban Co-operative Bank, Limited, Byadgi, (defendant in this case) obtained an award against one Shidlingappa and others (plaintiffs) under Section 54 of the Bombay Co-operative Societies Act, 1925. Under Section 59 of the said Act, the bank obtained a certificate from the Registrar to execute the award in the Court of the Subordinate Judge at Haveri. After having obtained the certificate, it filed darkhast No. 404 of 1930 in the Haveri Court for Rs. 1,000 against Shidlingappa and the plaintiffs. That darkhast was disposed of on April 10, 1931. Then in 1932 it filed a second darkhast, No. 1357 of 1932, against the judgment-debtors, and this darkhast was disposed of on July 11, 1933. The bank then made a third attempt by instituting a third darkhast, No. 39 of 1933, and this darkhast was disposed of on April 10, 1934. Then it made a fourth attempt by instituting darkhast No. 193 of 1937 on March 18, 1937. The executing Court held that Article 181 of the Limitation Act applied to such a darkhast and that the darkhast was therefore barred by limitation. The bank thereupon preferred civil appeal No. 253 of 1937 against the decision in the District Court of Dharwar. When the appeal came up for hearing, a purshis was filed by which the bank agreed that the appeal may be dismissed provided the question of limitation was kept open. The judgment-debtors also agreed to this proposal, and thereupon the appeal was dismissed. After these proceedings in the Subordinate Judge's Court at Haveri, the bank obtained from the Registrar a certificate under Section 59(1) (b) of the Bombay Co-operative Societies Act and applied to the Collector for recovery of their dues as arrears of land revenue. It was then that the plaintiffs filed the present suit for an injunction against the bank restraining it from executing the award, No. 54 of 1929, through the revenue authorities after getting a declaration that the said award was time-barred and that the bank was not entitled to recover anything from the plaintiffs on the strength of that award. The contention of the plaintiffs was that the Registrar had no authority to grant a certificate in such cases and the bank had no right to execute a time-barred award in the revenue Court.

3. The learned trial Judge held that the civil Court had jurisdiction to question the authority of the Registrar to issue a certificate under Section 59 (1)(b) even after the execution of the award by the civil Court. He further held that the darkhast had been held to be time-barred and that in such a case the Registrar had no power to issue a certificate so as to enable the Collector to execute the award, the execution of which was held to be barred by limitation in darkhast No. 193 of 1937. Accordingly, he issued an injunction restraining the bank from executing the award, No. 54 of 1929, through the intervention of the revenue authorities. When this matter went in appeal before the learned First Class Subordinate Judge with appellate powers, he observed that the trial Court was wrong in holding the view that the decree was held to be barred by limitation in darkhast No. 193 of 1937. He pointed out that in the appeal by the bank to the District Court the question of limitation had been specifically kept open. He was further of opinion that there was nothing in the Bombay Co-operative Societies Act of 1925 to prevent the Registrar from issuing a fresh certificate under Section 59(1) (b) so as to enable the party concerned to go before the Collector and to recover the amounts due to it as if they were arrears of land revenue. He also pointed out that the mere fact that the bank had chosen to pursue its remedy in the Subordinate Judge's Court did not preclude it from having recourse to the alternative remedy which is provided under Section 59 (1)(b) of the Act. In view of these findings the learned First Class Subordinate Judge allowed the appeal and dismissed the plaintiffs' suit with costs in both the Courts. Against that order this appeal (No. 1035 of 1943) has been preferred to this Court by the original plaintiffs.

4. In this appeal one of the points taken in the memo. of appeal is that the civil Court having held in darkhast No. 193 of 1937 that the execution of the award decree was barred by time, that decision was binding upon the bank and that therefore the Registrar had no right to revive a dead claim by issuing a certificate under Section 59(1)(b) of the Act. In this connection it has got to be remembered that the civil Court did not hold that the claim upon the award was barred by time. When the matter went in appeal to the District Court in appeal No. 253 of 1937, it was submitted before the learned Judge that the appeal might be dismissed provided the question of limitation was kept open. Both the parties agreed in that submission and therefore it cannot be held that the civil Court had come to the conclusion that the darkhast was time-barred. Even assuming that the point was decided in that darkhast, that decision was, in our opinion, clearly wrong. In Bhimsen v. Urban Bank, Muddebihal (1940) 49 Bom. L.R. 160 which we have decided today, we have taken the view that the proper article to apply is Article 182 and not Article 181. In that view the execution of the decree was not barred when the Registrar issued his certificate under Section 59(1)(b). Moreover, as pointed out by Mr. Coyajee for the respondent bank, merely because the civil Court held that the remedy of the party under Section 59(1) (a) was barred, it does not necessarily follow that the claim ipso facto lapses. It is a well-established rule of law in cases which are not governed by Section 28, limitation merely bars the remedy but does not extinguish the title. Even assuming that the civil Courts are right in holding that the remedy of the parties is barred in the civil Court by reason of the application of Article 181 of the Limitation Act, it does not follow that the award becomes infructuous; and if it was open to the party, under the alternative remedy given to it, to apply to the Collector for a certificate from the Registrar to recover the amount as arrears of land revenue, it does not appear that that remedy would not be available to the party concerned. As pointed out by Garth C.J. in Mahomed Hossein v. Kokil Singh, I.L.R(1881) . Col. 91 'it is erroneous to suppose that because the right to take out execution upon a decree is barred by limitation, the decree itself has ceased to subsist; the decree remains, and will ever remain, in full force, as an adjudication of the rights of the parties'. If under the law it is open to a party to execute that decree in another forum, and if resort to that forum is not barred by any statute of limitation, then there is nothing in law to prevent that party from resorting to that remedy, and it is conceded before us that so far as execution of the award decree by the revenue authority is concerned, there is no bar of limitation.

5. It was then contended before us by Mr. Jahagirdar that as soon as a certificate was issued by the Registrar under Section 59(1) (a) of the Bombay Co-operative Societies Act, the award must be deemed to have been a decree, and after the award assumes this character, it is no longer open to the Registrar to issue a fresh certificate under Section 59(1) (b) of the Co-operative Societies Act. For this contention reliance was placed principally on the words of Section 59(1) (a) in which it is stated that 'on a certificate signed by the Registrar the award shall be deemed to be a decree of a civil Court and shall be executed in the same manner as a decree of such Court.' It is true that this amendment was made by Act XVI of 1943, but we have, in the judgment which was delivered this morning, held that this amendment only clarifies the position as it existed even before that Act came into force. It was therefore argued that when the original certificates were issued in this case in 1930, the award immediately assumed the character of a decree and therefore became merged in the decree, and thereupon it was not competent for the Registrar to issue a new certificate for the execution of a non-existent award. In our opinion, this contention cannot be accepted. On the terms of the section itself, the award upon the issue of a certificate by the Registrar does not become a decree of a civil Court, but must be deemed to be a decree of a civil Court, and unless; it is deemed to be a decree of a civil Court, it would not be competent to a civil Court to execute it. It is only for the purpose of enabling the civil Courts to execute the award of the Registrar under Section 54 that it has got to be given the force of a decree, and for that purpose Section 59(1) (a) has been enacted. If the contention of Mr. Jahagirdar that the award on the issue of a certificate becomes a decree and becomes merged in it was to be accepted, then the second part of Section 59(1) (a) becomes redundant. If, on a certificate by the Registrar, the award becomes a decree of a civil Court, it was no longer necessary to state, that it shall be executed in the same manner as a decree of such Court. We therefore think that even on the issue of a certificate by the Registrar, the award does not become a decree of a civil Court.

6. The second point that was urged by the learned advocate for the appellants, is that Section 59(1) gives two alternative remedies to a person in whose favour an award has been given. The person could, on a certificate signed by the Registrar, execute it in the same manner as a decree of a civil Court or in the alternative he could apply for the recovery of the amounts due to him under the. rules for the time being in force for the recovery of the arrears of land revenue, provided the application is accompanied by a certificate signed by the Registrar or by an Assistant Registrar to whom the said powers have been delegated by the Registrar. It was argued by Mr. Jahagirdar that these are two alternative remedies and that if a person chooses to resort to the first remedy and obtains a certificate and tries to execute it as a decree of a civil Court, he is thereby for ever precluded from resorting to the second remedy. In this connection he invited our attention to the fact that the word 'or' occurs between the Clauses (a) and (b) and Clause (b) is not followed by the words 'or both'. In our opinion, this contention also cannot be accepted. The word 'or' occurring between Clauses (a) and (b) gives to the person in whose favour an award has been given two alternative remedies, either of which it is open to him to pursue. Section 51 of the Civil Procedure Code enumerates the various ways in which a decree of a civil Court can be executed, and it is well recognised that it is open to the decree-holder to pursue all or any of his remedies at the same time or even the same remedy at different places. It could not be contended with reference to Section 51 of the Civil Procedure Code that a resort to one remedy by implication precludes the decree-holder from resorting to other remedies. Our view gains support from the observations of Broomfield J. in Mulgund Co-operative Society v. Shidlingappa Ishwarappa : (1941)43BOMLR807 . The learned Judge observed (p. 813) :-

The learned trial Judge also attached importance to the fact that the plaintiff abandoned his proceeding in the Sub-Judge's Court and had recourse to the procedure under the Bombay Land Revenue Code. But this the society is permitted to do under the provisions of the Bombay Co-operative Societies Act and we ate unable to see that this conduct of the plaintiff affects the principles laid down in the cases to which I have referred.

7. Our attention was invited to the case of Hanmant Bhimrao v. Gururao Swamirao : AIR1943Bom36 , and it was argued on general principles that the plaintiff, having elected to pursue one remedy, was precluded from resorting to the other remedy. That was a, ease which went before the learned Chief Justice on a difference of opinion between Mr. Justice Divatia and Mr. Justice Macklin. The short point that arose for consideration in that case was: where a decree payable by instalments provided that in default of payment of any one instalment the whole of the amount then due could be recovered at once and where on such default the decree-holder elected to recover the whole amount due, whether he was bound thereafter to execute the decree to recover the whole amount in one sum or whether it was open to him to apply subsequently to recover the amount in instalments. It was held that the decree-holder having chosen to execute the decree to recover the whole amount in one lump sum, it was not open to him subsequently to recover the amount in instalments. In giving judgment the learned Chief Justice observed at p. 889 as follows:

The decree was originally a decree for payment by annual instalments. As soon as default was made, the decree-holder was given two inconsistent rights; he could continue under the decree to recover the amount by instalments, or he could recover the whole amount at once; but he could not do both. He was bound to limit his Darkhast to a principal sum either of Rs. 1,850 or Rs. 300. He had alternative rights, and the debtor was subject to alternative obligations. The creditor having elected to enforce his right to recover the whole debt in one lump sum, the future obligation of the debtor was fixed accordingly, and, in my opinion, it was not open to the creditor subsequently to turn round, and seek to enforce the decree as an instalment decree.

8. The learned Chief Justice was obviously dealing with a case where a person had two inconsistent rights, and having elected to enforce one right, he could not thereafter turn round and seek to enforce the other right. In the case with which we are dealing, the two methods which have been provided under Section 59(1) of the Act for the execution of an award decree under Section 54 of the Bombay Co-operative Societies Act are not inconsistent rights, but alternative remedies, and therefore the decision in Hanmant Bhimrao v. Gururao Swamirao would not apply to the present case. But there are certain observations in that same case on which some reliance has been placed by the learned advocate for the appellants. Beaumont C.J. observed (p. 889) :

In cases of that nature (i.e., cases of two alternative remedies) the plaintiff can pursue all or any of his remedies up to judgment. In general it is only on obtaining judgment on one remedy that the plaintiff loses the right to proceed on the other remedy.

It is argued that the bank having obtained a judgment-by way of dismissal of darkhasts on one remedy, i.e. recovery of dues through the civil Court, it was precluded from resorting to the other remedy, i.e. recovery of dues through the agency of the revenue authorities. The observations of the learned Chief Justice are based on the warning uttered by Lord Atkin in the case of United Australia, Ld. v. Barclays Bank, Ld. [1941] A.C. 1 Lord Atkin observed (p. 29) :

It seems to me that in this respect it is essential to bear in mind the distinction between choosing one of two alternative remedies, and choosing one of two inconsistent rights.

Until this ease was decided, the observations of Bovill C.J. in Smith v. Baker (1873) L.R. 8 C.P. 350 were quoted as authority for the proposition that (p. 355) :

A person who is entitled to complain of a conversion of his property, but who prefers to waive the tort, may do so and bring his action for money had and received for the proceeds of goods wrongfully sold. The law implies, under such circumstances, a promise on the part of the tortfeasor that he will pay over the proceeds of the sale to the rightful owner. But if an action for money had and received is so brought, that is in point of law a conclusive election to waive the tort; and so the commencement of an action of trespass or trover is a conclusive election the other way.

This dictum that it is the bringing of the action which constitutes a conclusive election was overruled by the House of Lords. In the case of United Australia, Ltd. v. Barclays Bank, Ltd., from which the observations of Lord Atkin are quoted in Hanmant Bhimrao v. Gururao Swamirao, the House of Lords was dealing with a case in which the plaintiff had two alternative remedies, one in contract and the other in tort, and it was held that the mere issue of a writ to enforce one remedy did not debar the plaintiff from proceeding on his other remedy. The trial Court in that case had held that the plaintiffs having made a claim for breach of contract only in their action in 1935 against M.F.G. and a similar claim in their proof in the subsequent liquidation, had waived their right to claim in tort, and consequently, even if Emons (the plaintiffs' secretary) had acted without their authority, they could not succeed in the action against the defendant bank. The Court of Appeal upheld the view of the trial Court and found that the appellants, by bringing the first action for breach of contract only, had elected to waive their right to bring the second action for tort, notwithstanding that the first action had not proceeded to judgment. When the matter went before the House of Lords, it was held that the appellants by merely initiating proceedings against the M.F.G. Company for money lent or for money had and received had not thereby elected to waive the tort so as to be precluded from bringing the present action in tort. In such a case it is judgment and satisfaction in the first action, and not merely the bringing of the claim, which constitutes a bar to a second action. The Lord Chancellor in giving judgment cited the case of Buckland v. Johnson (1854) 15 C.B. 145 and the judgments of the various Judges who constituted the bench in that case. Jervis C.J. in Buckland v. Johnson said that the question which was substantially at issue between the parties was (p. 161) 'whether there had been a substantial recovery by the plaintiff in the former action, so as to bar his right to recover in this'. Maule J. said that 'the substantial answer to the second action was that there had been an action for the conversion and recovery under it' and he went on to observe (p. 166) :

Having his election to sue in trover for the value of the goods at the time of the sale, or for the proceeds of the sale as money had and received, the plaintiff elected the former remedy, and he has obtained a verdict and judgment. He has therefore got what the law considers equivalent to payment, namely, a judgment for the full value of the goods... .Having once recovered a judgment, his remedy was altogether gone.

Crowder J. says (p. 168) :.The plaintiff, having made his election to sue for the tort, and having recovered what the jury considered the value of the goods at the time of the conversion, cannot now bring [an action for] money had and received in respect of the same cause of action.

The Lord Chancellor further went on to emphasise at p. 21 of the report of United Australia, Ltd. v. Barclays Bank, Ltd. that even if judgment had been entered in the appellant company's earlier action against M.F.G., the defendant bank would not have escaped liability. 'What would be necessary to constitute a bar, as Bayley J. pointed out in Morris v. Robinson (1824) 3 B. & C. 196 would be that as the result of such judgment or otherwise, the appellants should have received satisfaction'. He concluded by saying (p. 22) :.while admiring the subtlety of the old special pleaders, our Courts are primarily concerned to see that rules of law and procedure should serve to secure justice between the parties,

Having regard to these dicta of the learned Judges, the observations of Beaumon C.J. in Hanmantrao Bhimrao v. Gururao Swamirao (p. 889) that 'in. general it is only on obtaining judgment on one remedy that the plaintiff loses the right to proceed on. the other remedy' must be understood to mean that the proceedings up to judgment on the first remedy also imply that the plaintiff must have received satisfaction in pursuance of that remedy. If therefore the holder of an award obtains satisfaction after resorting to one remedy provided by law under Section 59 (1) (a) of the Bombay Co-operative Societies Act, then he would be precluded from resorting to the second remedy to which he could have had recourse under Section 59(1) (b) of the Bombay Co-operative Societies Act. In the present case it is conceded that in the darkhast which the bank had filed in the Court of the Subordinate Judge at Haveri nothing was recovered, and it cannot therefore be said that the bank had resorted to a remedy up to judgment and satisfaction. In that view, in our opinion, there was nothing to prevent the bank from obtaining a certificate from the Registrar and to proceed to execute the award by an application to the Collector for recovering the amounts due to it, as if they were arrears of land revenue.

9. In our opinion, therefore, the view taken by the lower appellate Court that the plaintiff had no right to obtain an injunction restraining the defendant bank from proceeding to recover its dues through the revenue authorities under Section 59(1)(b) is correct, and the appeal must therefore be dismissed with costs.


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