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Kopargaon Big Hagayatkar Vividha Karyakari Sahakari Society Ltd. Vs. Deorao Sakharam Pawar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond appeal No. 889 of 1972
Judge
Reported inAIR1976Bom333; 1977MhLJ181
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rules 1 and 11(2) - Order 29, Rule 1
AppellantKopargaon Big Hagayatkar Vividha Karyakari Sahakari Society Ltd.
RespondentDeorao Sakharam Pawar and anr.
Appellant AdvocateA.V. Savant, Adv.
Respondent AdvocateA.V. Datar, Adv. for ;M.V. Sali, Adv.
Excerpt:
.....- - 1 had committed any act of bad faith as envisaged in section provision (a) (ii) of the civil procedure code. the evidence on record clearly shows that the judgment -debtor has consideration land standing on his name. 6. where the application is made by a person other that the decree-holder all that is necessary is that the court should be satisfied that such a person is 'acquainted with the facts of the case'.the learned judge also ignored the provision of order xxix, rule 1 of the civil procedure code, which lay down: even assuming that the court was not satisfied from the evidence on the record that the chairman was acquainted with the facts of the case. i declare that what is stated herein is true to the best of my knowledge and belief. and he has stated before the court..........- debtor no. 1, deoram sakharam pawar. 2. in reply to the notice under order xxi, rule 31 of the civil procedure code, judgment-debtor no. 1 filed a written statement as exh, 16 raising several contentions; and again fled an additional written statement arising several other contention. the oval and documentary evidence was before the learned civil judge, shrirampur. by his judgment and order dated november 6, 1970, the learned civil judge dismissed the darkhast, ordering judgment-debtor no. 1 to pay the costs on the ground that there was no evidence on the record to show that judgment -debtor no. 1 had committed any act of bad faith as envisaged in section provision (a) (ii) of the civil procedure code. the learned judge also held that there was no evidence worth the name to show that.....
Judgment:

1. The appellant in the above Second Appeal is the Kopargaon Big Bagayatdat Vividha Karyaari Sahakari Society Ltd., registered under the Maharashtra Co-operative Societies Act, 1960. The Society obtained a decree against judgment-debtors Nos. 1 and 2 respondents Nos. 1 and 2, Deorao Sakharam Pawar, in Regular Suit No. 38 of 1955, on August 31, 1956, for a sum for Rs. 1,683/- and odd thought almost 19 years have passed the respondents have not cared to pay a single paisa towards the decree. Darkhast Nos. 354 of 1966, 213 of 1960 and 13 of 1964, filed by the Society , yielded nothing. By their application No. 3 of 1967, the decree was got transferred to Shrirampur Court. The decree-holder applied for execution of the, on April 28, 1967 in that court by sale of the moveable property belonging to the judgment - debtors and alternatively, for the arrest for the judgment-debtors. The said Regular Darkhast No. 83 of 1967, was signed and verified by S. K. Raskar, in his capacity as the Chairman of he Society. The execution was sought only against Judgment - debtor No. 1, Deoram Sakharam Pawar.

2. In reply to the notice under order XXI, Rule 31 of the civil Procedure Code, Judgment-debtor No. 1 filed a written statement as Exh, 16 raising several contentions; and again fled an additional written statement arising several other contention. The oval and documentary evidence was before the learned Civil Judge, Shrirampur. by his judgment and order dated November 6, 1970, the learned Civil Judge dismissed the Darkhast, ordering Judgment-debtor No. 1 to pay the costs on the ground that there was no evidence on the record to show that judgment -debtor No. 1 had committed any act of bad faith as envisaged in Section Provision (a) (ii) of the Civil Procedure Code. The learned Judge also held that there was no evidence worth the name to show that the judgment-debtor No. has, or has refused or neglected to pay the decorate amount as laid down in provision (b) of Section 51 of the Civil Procedure Code.

3. The society carried an appeal against the said decision. The learned Extra Assistant Judge, by his judgment and order dated June 14, 1972, dismissed the appeal although he reversed the finding of the trial Court with regard to the meant and capacity of judgment-debtor No. 1 to pay because he was of the view that the Darkhast was not maintainable, as it was not signed or verified by the property authorised person, observing as follows, in para 11 of his judgment:

'The evidence on record clearly shows that the judgment -debtor has consideration land standing on his name. The extracts of the record of rights are produced at Ex's. 45 to 50. There is hardly any evidence on record to show that all of these lands stood in the name of judgment debtor No. 1 in is capacity as the manager of the joint family. Moreover, if he has contracted the debt n question as the manager of the joint Hindu family for the benefit of the family the lands standing in his name even as the Manager of the joint family could certainly be said to be affording him a source of income. The decree in question is passed more than 12 years ago and had the judgment debtor really a mind to pay the amount he could have pad the amount by very easy instalments. The fact that the judgment-debtor did not pay even a farthing so far itself speaks volumes for his attitude towards evasion of the payment of the decorate dues.'

The society has filed the above Second Appeal against the concurrent orders passed by the lower Courts.

4. The finding of the learned Assistant Judge that the judgment -depot No. 1 - respondent NO. 1 has, or has had since the date of the decree, the means to pay the amount of the decree of some substantial part thereof and refuses or neglects or has refused or negates to pay the same, is a finding of fact, based on appreciation of the oral and documentary evidence on the record. I have carefully considered the findings recorded by the trial Court and the appellate Court and I find no error in the finding recorded by the learned Assistant Judge, reversing the finding of the trial Court who had not applied his mind to the evidence on the record show that Judgment debtor NO. 1 had the means to pay the amount of the decree and refused o do the same. The finding of fact will not be disturbed by this Court in second appeal, in view of the limits of the powers of the Court under Section 100 and Section 101 of the Civil Procedure Code.

5. The only question; which survives n the above second appeal is therefore, whether the learned Assistant Judge was right in dismissing the Darkhast application on the ground that it was not signed and verified by a person, who was expressly authorised by a resolution of the society. The requirements of signing and verifying of a Darkhast application are laid down in Order XXI, Rule 11 (2) of the Civil Procedure Code. Amongst other requirements it say that the application; must be 'in writing signed and verified by the applicant or by same other person proved to the satisfaction of the Court to be acquired with the facts of the case.' The rule does not require that it must be signed and verified by a person authorised in writing, as appears to have been assumed by the learned Assistant Judge. If the learned Assistant Judge had only cared to look at Order XXI, Rule 11 (2), he would have found that an application for execution may be verified by any person acquainted with the facts of the case.

6. Where the application is made by a person other that the decree-holder all that is necessary is that the Court should be satisfied that such a person is 'acquainted with the facts of the case'. The learned Judge also ignored the provision of Order XXIX, Rule 1 of the Civil Procedure Code, which lay down: 'In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.'

7. Under Section 36 of the Maharashtra Co-operative Societies Act, 1960. the registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings, and to do all such things as are necessary for the purpose for which it is constituted. Hence the learned Judge ought to have held that the Chairman of the Society who is an officer of the society having verified the application, the application fulfilled the requirements of Order XXIX, Rule 1 of the Civil procedure Code: even assuming that the Court was not satisfied from the evidence on the record that the Chairman was acquainted with the facts of the case.

8. The facts of the case were very simple. there was a decree, whose certified copy was before the learned Judge. and there was not payment for a single paisa towards that decree. There was evidence before the learned Judge, which the learned Judge accepted that the judgment-debtor No. 1 had means to pay but refused to pay and neglected to pay the facts were so simple that the learned Judge could not have inferred from the non-examination of the chairman who had signed the application, or non production of the resolution of the Society authorising the chairman again to file the application, that the chairman must not have been acquainted with the facts of the case.

9. The learned Judge has referred to Order XXIX, Rule 1 of the Civil Procedure code; and has said that it is not proved that S.K. Raskar was a person, who was able to depose to the facts of the case. Here again, it is difficult to understand as to on what basis the learned Judge came to the conclusion that the Chairman was not able to depose to the facts of the case when he verified the information before filing of the DArkhast and when he was knowing that he was able to depose to the facts of the case.

10. In the written statement filed by the judgment - depot No. 1 it is not stated that the Chairman was not able to depose to the facts of the case, within the meaning of Order XXIX, Rule 1 of the meaning or Order XXI, Rule 11 (2) of the Civil Procedure Code. The darkhast application is in the form prescribed by order XXI, Rule 11 of the Civil Procedure code. It is signed and verified by the chairman of the society, stating as follows:

11. The statement in Marathi appears to be the Marathi translation of the verification clause which is to be in Form No. 6. Appendix `E` to the Civil Procedure Code, which reads as follows:

'I declare that what is stated herein is true to the best of my knowledge and belief.'

12. The learned Assistant Judge has ignored this verification which terms shows that the person, who signed the darkhast, was signing it on behalf of the Society which is a corporate body and he had himself declared before the Court that he was acquainted with the facts of the case; and he has stated before the court that whatever was stated in the Darkhast, was true to the best of his information, which he had. This necessarily implies that the Chairman of the Society was acquainted with the facts of the case, within the meaning of Order XXI, Rule 11 (2) of the Civil Procedure code, and the case, within the meaning of Order XXIX, Rule 1 of the Civil Procedure Code. The learned Assistant Judge referred in law in assuming that the person, who signs a proceeding on behalf of the corporate body, must be a person properly authorised by a resolution to institute a proceeding.

13. It is necessary to observe that in considering any part of the procedure of the Court, the learned Assistant Judge was bound to follow the Civil Procedure Code; and not to lay down what he considered to be the law. The words of the Civil Procedure Code are simple and if he had only looked at them, he would not have committed the error of assuming that some more or other authorisation was necessary, before the Darkhast application was filed on behalf of the Society.

14. In the result the orders passed by the two Courts below are set aside; and it is ordered that if the judgment debtor No.1 fails to pay the decretal amount within one week from the receipt of the writ of this Court by the trial Court, the trial Court shall issue a warrant for the arrest of the Judgment-debtor No. 1 under Order XXI, Rule 38 of the Civil Procedure Code and execute the same in accordance with the provisions of order XXI, Rule 40 (3) (4) (5) of the civil Procedure Code, as the case may be. The second Appeal allowed with costs through out.

15. Appeal allowed.


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