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Valiram Lakhani Vs. S.M. Kuray and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1606 of 1973
Judge
Reported inAIR1974Bom295; (1974)76BOMLR176; 1974MhLJ374
ActsMaharashtra Co-operative Societies Act, 1961 - Sections 96 and 154; Maharashtra Co-operative Societies Rules, 1961 - Rule 83; Code of Civil Procedure (CPC), 1908 - Sections 47
AppellantValiram Lakhani
RespondentS.M. Kuray and ors.
Appellant AdvocateH.G. Advani and ;K.N. Mirchandani, Advs.
Respondent AdvocateM.S. Sangavi, Adv., i/b., Little and Co., Attornerys and ;K.J. Abhyankar, Adv.
Excerpt:
.....under section 98(a) of the maharashtra co-operative societies act, 1960 for execution of an award passed in a proceeding under section 91 of the act on the ground that the award is not carried out, should be deemed to be a decree of the civil court under section 47 of the civil procedure code, 1908, and should be executed in the same manner as a decree of such court. the assistant registrar has no power to hold an enquiry as to whether the allegation made by the successful party that the award is not carried out is or is not correct.;the power conferred by section 154 of the act is very wide but it will not include ' setting aside a legal and proper order passed by the assistant registrar under section 98(a) or (b). - - 3 failed to carry out the award. 98 every order passed by..........certificate issued by the assistant registrar, co-operative societies, bombay, for execution of an award passed in the proceedings under section 91 of the maharashtra co-operative societies act, by consent on november 15, 1969. the order of the divisional joint registrar is challenged on the ground that he had no jurisdiction to set aside the certificate to execute the award as decree of the civil court.2. a few relevant facts may be stated briefly as follows:-the petitioner filed an arbitration case against respondent no.3 under section 91 of the of the maharashtra co-operative societies act. 1960. the case was refereed to the officer on special duty, bombay, who passed an award in accordance with the consent terms arrived at between the parties. under the said award the respondent.....
Judgment:

Vaidya, J.

1. The above special civil application under Articles 226 and 227 of the Constitution of India is directed against the order of the Divisional Joint Registrar of Co-operative Societies, Bombay, dated April 18, 1973, setting aside the certificate issued by the Assistant Registrar, Co-operative Societies, Bombay, for execution of an award passed in the proceedings under Section 91 of the Maharashtra Co-operative Societies act, by consent on November 15, 1969. The order of the Divisional Joint Registrar is challenged on the ground that he had no jurisdiction to set aside the certificate to execute the award as decree of the Civil Court.

2. A few relevant facts may be stated briefly as follows:-

The petitioner filed an arbitration case against respondent No.3 under Section 91 of the of the Maharashtra Co-operative Societies Act. 1960. The case was refereed to the Officer on Special Duty, Bombay, who passed an award in accordance with the consent terms arrived at between the parties. Under the said award the respondent undertook to pay to the petitioner Rs.350/- as compensation for the flat occupied by him in a Co-operative Housing Society which was also a party to the said arbitration case. He had also to pay arrears of compensation at the said rate. It was further provided, that in the event of the respondent 3, failing to pay arrears as stipulated above, or in the event of his failing to pay arrears of compensation and other dues for three consecutive months, notwithstanding anything else contained in the consent terms, the respondent 3 was liable to be evicted immediately.

3. On December 7, 1971, the petitioner applied to the Assistant Registrar, Co-operative Societies for issue of a certificate for execution of the award as a decree through the Civil Court under Section 98 of the Maharashtra Co-operative Societies Act, 1960 alleging that the respondent No. 3 failed to carry out the award. The Assistant Registrar of Co-operative Societies issued a certificate for execution of the award under Section 98(a) of the Maharashtra Co-operative Societies Act, 1960, on February 16, 1972. Relying on the said certificate the petitioner filed the executive application on the Original Side of this Court for recovery of possession of the flat.

4. During the pendency of the said application respondent No. 3 filed a revision application under Section 154 before respondent No. 1, the Divisional Joint Registrar of Co-operative Societies, Bombay, challenging the issue of the certificate on the ground that he had paid regularly Rs. 350/- by way of compensation and Rs. 11/- as car parking charges every month. It was contended that while the amount of compensation was being paid through bank, the car parking charges were paid by him in cash and no receipts were passed by the petitioner. He, therefore, contended that the petitioner was not entitled to executive the award.

5. The revision application was resisted by the petitioner before respondent No. 1 on the ground that as the same matter was pending in execution before this Court on the Original Side, the objections regarding the execution of the award ought to have Been raised only before the High Court and not before the Registrar of Co-operative Societies. It was also pointed out that respondent No. 1 should not reserve the certificate of execution because the respondent No. 3 had filed a suit in the Small Cause Court challenging the jurisdiction of the Registrar to decide the dispute under Section 91 of the Maharashtra Co-operative Societies Act 2960 and that the said suit is also pending in Court.

6. The respondent No. 1 overruled these objections on the ground that the result of the finding or order of the Assistant Registrar was that the respondent No. 3 had become a defaulter, but the Assistant Registrar had not given any opportunity tot he respondent No. 3 to satisfy him that he had not committed defaults and that the award was not liable to be executed. The respondent No. 1 further held that, that was a matter in which the executive Court could not go into.

7. The said decision of the respondent no. 1 is challenged in this petition on the ground that the decision of the Registrar is contrary to the provisions of Section 47 of Civil Procedure Code, which provides, inter alia as follows:-

'47, Questions to be determined by the Court executing decrees. - (1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executive the decree and not by a separate suit'.

In the present case the only question is whether the award can be executed by the petitioner in view of what respondent no. 3 has contended. The question can be considered only by the Executing Court under Section 47 of the Civil Procedure Code after the certificate is issued under Section 98 of the Maharashtra Co-operative Societies Act, which in so far as it is material reads as follow:

'98 Every order passed by the Registrar or a person authorized by him under Section 88 or by the Registrar his nominee or board of nominees under Section 95 or 96, every order passed in appeal under the last preceding section, every order passed by a Liquidate under Section 105, every order passed by the State Government in appeal against orders passed under Section 105 and every order passed in revision under Sec, 154 shall, if not carried out -

(a) on a certificate signed by the Registrar or a Liquidator, be deemed to be a decree of a Civil Court, and shall be executed in the same manner as a decree of such court'.

The Assistant Registrar was, therefore justified in issuing the certificate as it was complained to him by the petitioner that the respondent No. 3 had not carried out the terms of the award. The Assistant Registrar had no discretion in the matter. He was not bound to issue a notice to the respondent No. 3. He had to order the issue of a certificate.

8. Once a certificate was issued in accordance with the provisions of Section 98 (a the award should be deemed to be decree of a Civil Court and shall be executed in the same manner as a decree of such order. All question relating to the execution, or discharge satisfaction of the award shall be therefore, thereafter, decided only under Section 47 of the Code of Civil Procedure and not by the Registrar or the Assistant Registrar. Respondent No. 1 ignored the provisions of Section 47 of the Civil Procedure Code and wrongly assumed that it was still open to the Registrar to consider under Section 154 of the Maharashtra Co-operative Societies Act, whether the certificate issued by the Assistant Registrar was legal and proper.

9. Section 154, confers revision jurisdiction on the State Government and the Registrar for the purpose of considering the legality and propriety of considering the legality and propriety of any decision or order passed by a Sub-ordinate Officer. It confers on them the power to set aside the entire decision of a part of it or to modify the decision. The power is undoubtedly very wide but it will not include setting upside a legal and proper order passed by the Assistant Registrar. The wording of Section 98 (a) and (b) shows that the Assistant Registrar has no discretion in the matter of issuing a certificate if an application is made to him stating that the award is not carried out. The word 'shall' be deemed to be a decree and 'shall;;' be executed as a decree leaves no discretion to the Assistant Registrar. It would have been a different matter if he was asked to execute the award for recovery of sums under Section 156 of the Maharashtra Co-operative Societies Act, 1960, where the words are 'may recover'. In the present case the petitioner in whose favour the award was made had asked for execution of the award as a decree through Civil Court. We think the Assistant Registrar was , therefore, legally bound to issue a certificate. The Registrar could set aside the valid or proper order of issue of certificate. Section 154 of the Act did no authorize the Registrar to set aside the order issuing the certificate passed by the Assistant Registrar according to law.

10. Mr. Abhyankar, the learned Counsel for respondent No. 3, submitted that having regard to the provisions of Section 98 of the Maharashtra Co-operative Societies. Act and Rule 83 of the Maharashtra Co-operative Societies Rules 1961, the Assistant Registrar had to satisfy himself before issuing a certificate, that the award was not carried out, and he could not do so unless he made proper enquiry after hearing the party against whom the award is passed. Once an award is passed and the execution is sought by the successful party through a Civil Court, we do not think that the Assistant Registrar has any power to hold an enquiry as to whether the allegations made by the successful party that the award is not carried out is or is not correct. It is open to the party against whom the award is sough to be executed to place before the executing court material to show that the award is partly or fully satisfied and that the award is not executable for any reason of law or fact. Under Section 47 of the Civil Procedure Code it is for the executing court to decide such question. Once a certificate is issued for execution of the award through a Civil Court, the machinery under Section 98 becomes functus officio so far as the issue of certificate of execution of the award as a decree is concerned. All questions relating to the execution of the award must be henceforward decided by a Civil Court.

11. We do not think that Section 98 and Rule 83 contemplate that if a party is successful in getting any award in a proceeding in getting any award in a proceeding under Section 91 once again he should go through an inquiry and hearing to satisfy the Assistant Registrar that the award is not carried out, Such multiplication of proceedings before the Assistant Registrar, who is also authorized to pass an order, could never had been intended by the Legislature. All that a party is required to do under Section 98 is to make a statement that the award is not satisfied or that the award is not carried out by the party against whom the award is made.

12. In the result the impugned order passed by the Divisional Joint Registrar of Co-operative Societies, Bombay, respondent No. 1 dated April 18, 1973, is quashed and set aside as the respondent No. 1 had no jurisdiction to set aside the order properly passed in accordance with law, in the facts and circumstance of the case by the Assistant Registrar, Co-operative Societies, Bombay.

13. Rule is made absolute. Respondent No. 3 to pay costs of the petitioner, Respondent Nos. 1 and 2 to bear their own costs.

14. Petition allowed.


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