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Gopal Vs. the Divisional Joint Registrar, Co-op. Societies, Amravati and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1056 of 1982
Judge
Reported inAIR1983Bom346; 1983MhLJ1020
ActsMaharashtra Co-operative Societies Act, 1961 - Sections 37, 98 and 101; Maharashtra Co-operative Societies Rules - Rule 107(23); Constitution of India - Article 226
AppellantGopal
RespondentThe Divisional Joint Registrar, Co-op. Societies, Amravati and ors.
Appellant AdvocateC.S. Dhabe and;N.S. Bhatted, Advs.
Respondent AdvocateB.N. Mohta, Adv.
Excerpt:
a) the case dealt with the recovery of loan from the debtor under maharashtra co-operative societies act, 1961 - the certificate was issued against the debtor and on his death, it was issued against the petitioner who was the legal representative, without determining his liability - the court ruled that the petitioner could be allowed to raise this point in the writ petition.;b) the case dealt with the recovery of loan from the debtor under maharashtra co-operative societies act, 1961 - the certificate was issued against the debtor and on his death, it was issued against the petitioner who was the legal representative, without determining his liability - the court ruled that the registrar was not required to make enquiry under section 98 of the act since it was for the recovery officer to.....tulpule, j.1. this writ petition is for a writ of certiorari to strike down and quash the recovery proceedings following the certificate dated 2-5-1981 issued by the district deputy registrar and notice issued by the recovery officer dated 15-7-1981 and orders passed pursuant thereto.2. the few facts leading to this petition, and which are not in dispute, can be stated thus: the petitioner is the son of madanlal kalantri. it appears that this madanlal onkardas kalantri was indebted to malkapur urban co-operative bank, malkapur in the district of buldana. proceedings were started against him under the maharashtra co-operative societies act, section 91 and an award came to be passed on the 28th of august 1968 directing madanlal to pay an amount of rs. 13,445/- to the malkapur urban.....
Judgment:

Tulpule, J.

1. This writ petition is for a writ of certiorari to strike down and quash the recovery proceedings following the certificate dated 2-5-1981 issued by the District Deputy Registrar and notice issued by the Recovery Officer dated 15-7-1981 and orders passed pursuant thereto.

2. The few facts leading to this petition, and which are not in dispute, can be stated thus: The petitioner is the son of Madanlal Kalantri. It appears that this Madanlal Onkardas Kalantri was indebted to Malkapur Urban Co-operative Bank, Malkapur in the District of Buldana. Proceedings were started against him under the Maharashtra Co-operative Societies Act, Section 91 and an award came to be passed on the 28th of August 1968 directing Madanlal to pay an amount of Rs. 13,445/- to the Malkapur Urban Co-operative Bank, Malkapur (hereinafter referred to as the Malkapur Bank). Interest was also awarded on this amount at 11 per cent per annum.

3. As the amount was not paid by the said Madanlal, the Malkapur Bank took up proceedings for recovery and on 26th October 1972 a certificate was issued against the said Madanlal for recovery of an amount of Rs. 14,452.95 and further interest thereon as directed in the certificate including the costs. Further proceedings were continued against the said Madanlal, but did not succeed, it appears, in recovering any moneys from the said Madanlal except it appears, a very small amount.

4. On the 11th October 1976 Madanlal died. He was survived by his widow Basantprabhabai and the petitioner Gopal. The petitioner is an employee of National Insurance Company Limited which has its office at Akola. On the death of Madanlal on the 2nd of May 1981 as per Annexure-3 to the petition, a certificate came to be issued under Section 98 of the Act read with Rule 107, sub-rule (23) of the Maharashtra Co-operative Societies Rules by the District Deputy Registrar, who is respondent No. 2 to this petition. This certificate set out the fact of the award having been obtained against Madanlal Kalantri by the Malkapur Bank and that Basantprabhabai and Gopal were his heirs. The certificate was, therefore, issued in terms of Rule 107, sub-rule (23) 'for the recovery of the said sum from legal heirs', the aforesaid Basantprabhabai and Gopal. The certificate also certified that the amount is recoverable in law and under the rules being the certificate which was issued under Section 98 (b) of the said Act.

5. It was thereafter that the Recovery Officer issued a notice dated 15th of July 1981-Annexure-4 to the said Gopal. that notice called upon him to give an explanation as to why the moveable and immovable property of Gopal and his salary 'should not be attached'. The notice also threatened that in case he failed to do so his moveable and immovable property would be attached as also his salary and the amount would be recovered from these properties. The claim was Rs. 22,467.21, made up of principal Rs. 7092.12, interest Rupees 14,925.09 and other miscellaneous charges.

6. The petitioner Gopal showed cause and took up various contentions. He contended that he was not at all liable and that his father 'had left no moveable and immovable property as such'. He also submitted that the loan was not obtained for the benefit of the property and the petitioner who was a minor was not in any way liable. That the deceased had not left any moveable and immovable property and the petitioner does not possess any such property. He also contended that recovery against him could not be started and he was not a party to the issuance of the recovery certificate which amounts to refusal of the principles of natural justice. He also raised other contentions on merits as to why no part of his salary should be attached.

7. The Recovery Officer who heard his objections overruled these objections and held that the petitioner was liable for that '2/3rd of the salary, withdrawal from the allowances and the wages payable' to the petitioner. Accordingly recovery was commenced from the date of this order dated 14th September 1981.

8. Aggrieved by that order, the petitioner filed a revision application before the Divisional Joint Registrar. In the revision application he also raised certain contentions which are similar, apart from contending that he was not liable at all. He also contended that his contentions were not property considered, which were raised before the Recovery Officer and that the amount Recovery Officer and that the amount directed to be deducted was also not proper.

9. The Divisional Joint Registrar by his order dated 6th March 1982 rejected the revision application holding that under Section 60 of the Code of Civil Procedure salary liable to be attached was correctly calculated and, therefore the order was proper. while making this order, he also made an observation that 'there were no assets with late Shri Madanlal from which the dues of the Urban Co-operative Bank Limited could be recovered'. The Divisional Joint Registrar, however, as contended before the Recovery Officer did not apply his mind apparently to the contentions which were raised by the petitioner, namely, of his non-liability. Though the Divisional Joint Registrar did hold and observe apparently that there were no assets left by the deceased, he did not consider what would be the effect of this circumstance upon the liability of the petitioner. Aggrieved by these orders and proceedings, the present petition is filed.

10. The respondent-Bank has filed its return and disputed the claim of the petitioner. Amongst other contentions, it was contended by the respondent that the deceased Madanlal was a partner in Messrs New India Agricultural Industry, Malkapur. That on the death of Madanlal 'his right, title and interest in the said firm devolved on the petitioner and his mother'. It was also contended that the said business was still running. It was pointed out by the respondents that there was no violation of the principles of natural justice and no disregard thereof. The petitioner was given an opportunity. A show cause notice was issued to him, as also a demand notice and recovery was started only after he was heard. Contrary to the finding of the Divisional Joint Registrar the respondents denied the charge 'that the father of the to had no property or that he expired without leaving any property, movable or immovable as allege'.

11. It was contended for the petitioner that the proceeding against the petitioner was without jurisdiction. It was firstly urged that a certificate under Section 98 of the Act read with Rule 107, sub-rule (23) of the Maharashtra Co-operative Societies Rules, which is the foundation of the proceedings and demand notice against the petitioner is void. It was contended that as Rule 107, sub-rule (23) would indicate the liability of heir or legal representative of a deceased debtor was conditional and was certificate would be possible to be issued or can be issued where the existence of any property of the deceased which has come to the hands of the legal representative and heir is not specified. It was, therefore, contended that the certificate concludes and creates a right in the Bank or the society concerned, to proceed against the legal representatives or heirs. It also makes the legal representative or heir liable to pay the dues which are certified therein as due from the debtor. It was contended that the ordinary principles of natural justice and the rule audi alteram partem and necessity of giving a hearing to a person who is sought to be concluded or bound or is exposed to any action would suggest that even before the Registrar issues a certificate under Section 98, sub-section (a) or (b), he has to issue a notice to show cause and call upon the legal representatives or heirs as to why a certificate as claimed under Rule 107, sub-rule (23) should not be issued. It was pointed out that in a given case as between the legal representatives and the heirs, there may be also a contest as to which of the legal representatives or heirs is liable and who has received any property and the extent of that property . It was urged that apart from the condition enabling issuance of a certificate against the legal representatives. the extent of the legal representatives' liability is also limited to the possession of the property and its value. The certificate may, therefore, in ordinary course and naturally would limit the amount recoverable against each of the legal representatives in a case where the legal representatives have received parcels of property of the deceased. If a certificate was, therefore, issued without such notice to persons who have a right to be heard upon the certificate, itself, is void and no proceedings can be initiated upon such a certificate.

12. Alternatively, it was submitted that even assuming that the procedure contemplated in Rule 107, sub-rule (230 of the Maharashtra Co-operative Societies Rules contemplates issuance of a certificate only where the defaulter has died without the decree being fully satisfied leaving behind him legal representatives and heirs, then before any order is passed against the legal representative or an heir directing him to make any payment, an enquiry has to be held as to what is the property which was left by the deceased which was undisposed of, what was the value or extent of that property which the legal representative or heir who had received that property and to what extent. it was contended that the recovery can proceed and follow only after recording such a finding and then also to the extent of the property possessed or received by such legal representatives or heir. It was also urged that in such a case where it is found that the property is received and payment is not made by the legal representative, it is then only that the property of the legal representative himself can be proceeded against. Until such a contingency arises, the property of the legal representatives cannot be proceeded against and it is only the property of the deceased which is in the hands of the legal representative which can be proceeded against. In the present case, it was submitted that neither the Recovery Officer, nor the District Deputy Registrar held an enquiry and came to the conclusion that any property was left by decease Madanlal, that any property had come to the hands of the legal representative, the petitioner and what was the extent of that property. It was not held that any particular item of property of deceased Madanlal, which was not disposed of, has come to the hands of the petitioner. The petitioner, therefore, it was urged, could not be held to be liable without such an enquiry and no property belonging to the petitioner, like his salary could be attached. It was further urged that the right to proceed and to recover is dependent upon existence of certain pre-conditions. It is the existence of such pre-conditions that gives jurisdiction to the Recovery Officer to recover the amount and attach the property. Those pre-conditions are that there must be undisposed of property left by the deceased. The second condition which was necessary to be found was that such property has come to the hands of the legal representative. Where these two conditions are found, then also it was urged that there was a further limit on the right to recover and that limitation is that the recovery must be limited to the extent of the property received and not more.

13. Mr. Mohta appearing for the Malkapur Bank respondent No. 4, seriously contended before us that the contentions which are now being raised by the petitioner were not pressed either before the Recovery Officer or before the Divisional Joint Registrar. In view of what we have extracted above of the reply and the grounds in the revision application. Mr. Mohta could not seriously contend that a contention was not raised. We do not think that it would be possible to say that a contention which finds a place in the reply to the notice and the grounds of revision to which we have made a reference above cannot be said to have been raised. Nevertheless the order passed by the Recovery Officer, as also the Divisional Joint Registrar is silent as to whether such a question was raised before him. Indeed, the Divisional Joint Registrar's order would indicate that the only ground which was raised before him by the petitioner was the extent of the order of attachment and the quantum of salary sought to be attached. Mr. Mohta, therefore, prayed that even assuming that the contentions were raised by the petitioner, they must be deemed to have been given up and not pressed. If they were not so pressed, his submission was that the petitioner was not entitled to any relief.

14. Mr. Moth alternatively contended that the scheme of the Act, namely the provisions of the Maharashtra Co-operative Societies Act do not indicate any such certificate to be issued after an enquiry and after a show cause notice by the Registrar to the legal representatives or heirs. He submitted on the basis of the provisions of se 98 that the issuance of certificate under Section 98 depends upon the existence of only one condition. If that condition is satisfied then a Registrar would be authorised to issue a certificate. That condition is where the order passed is not obeyed or is not been satisfied. Besides it was further contended that Rule 107 along with its sub-rules of the Maharashtra Co-operative Societies Rules, 1961 provides a complete Code for execution of awards and recoveries on the basis of certificates issued by the Registrar. It merely contemplates substitution or bringing heirs on record of a deceased debtor. The only enquiry if at all which may be required to be held in such circumstances, according to Mr. Mohta is as to whether the proposed persons against whom the certificate is issued are or are not legal representatives of the deceased debtor and nothing more, Considering other analogous and parallel provisions in the Act and considering sub-rule (23) by itself. Mr. Mohta submitted that no enquiry before the Registrar is contemplated. The certificate issued on the 17th of May 1981, therefore, he submitted was properly issued. It was more in the nature of an administrative act and was not a judicial or a quasi judicial decision involving the application of the principles of rules of natural justice. As long as Madanlal was possessed of property he having died without satisfying the debt, the continuance of the liability of the assets of the deceased to pay and satisfy the dues from the debtor continued. It could be proceeded against and realised by proceeding against all those in whose possession the property is. In such a case the remedy and the right which is continued is really, it was submitted, not against the legal representatives, but it is against the property of the deceased. The legal representatives are brought on record because they intervene and it is they who are in possession of the property. The property cannot be reached unless they are brought on record. The only objective, therefore, of the amendment and the correction of the certificate which was already issued in this case against Madanlal was to enable and continue the execution of the award against the property of deceased Madanlal.

15. We are not impressed by the contention of Mr. Mohta that since the petitioner did not appear to have raised the contention either before the Registrar Officer or before the Registrar in appeal therefore he is precluded from raising. Where the challenge to the order is on the ground that it is without jurisdiction we cannot say that merely because the orders do not appear to say so the contention should not be allowed to be raised now by the petitioner. We think where a prayer for a writ of certificate is asked for. the Court is entitled to see whether the subordinate tribunal has acted with jurisdiction and within the powers which are conferred upon it by law. If the exercise of the powers is not is accordance with the law conferring jurisdiction, or where the exercise of jurisdiction is contingent upon the existence of certain facts, which are pre-conditions for the exercise of the jurisdiction are not even alleged to exist the very exercise of jurisdiction, and authority comes to an end and cannot be said to be properly exercised. The absence of existence of such jurisdictional facts, absence of a finding that those fact which are condition precedent for the exercise of the power exist, the very order is vitiated as also the proceedings.

16. It is, therefore, clear that where the jurisdiction to pass an order and the very right to issue an order is challenged and was challenged at all the earlier stages, even assuming that it was not pressed at a particular stage was at one at the other of the stages of the proceedings, when a writ is asked on the ground that the authority or the tribunal did not have jurisdiction which it purported to posse and act upon is questioned, then the High Court will be bound and entitled to go into the question as to whether the authority concerned had found that it had jurisdiction, or circumstances and facts enabling the exercise of jurisdiction by that authority or tribunal had been found by it as a fact. It is clear to us that where the right to exercise a particular authority, where a right to make an order depends upon the existence of facts which can be said to be jurisdictional facts, before such an order is passed and before such right is exercised, the jurisdictional facts must be found or established on the basis of the material on the record. The authority concerned cannot proceed to act and pass an order without first finding that it has the jurisdiction to do so and the facts which enable it to exercise that jurisdiction exist or found by it as a matter of fact. Merely, because therefore the orders passed by the Recovery Officer or the Divisional Joint Registrar in the revision do not say as to whether this contention, which figures and finds a place in the reply and the grounds was or was not urged, that such a contention must be deemed to have been given up. Since we feel that the contention goes to the root of the matter, we think where a writ of certiorari is asked for, it must be shown and established on the face of the order that the authority had the jurisdiction, and found as a matter of fact where it is dependent upon the existence of certain circumstances or pre-conditions, that those pre-conditions or circumstances did as a matter of fact exist. We do not think. therefore, that the petitioner cannot be allowed to raise this contention.

17. On the face of the orders by the Recovery Officer as well as by the Divisional Joint Registrar we are unable to find, as we shall presently point out that the conditions permitting the exercise of the power and directing the issuance of recovery proceedings against the legal representatives were in fact found and said to be existing by either the Recovery Officer or the Divisional Joint Registrar. We may in this connection advert to Rule 107, sub-rule (23), which is as follows :--

'107. Procedure for attachment and sale of property under Section 156 -

x x x (23) Where a defaulter dies before the decree has been fully satisfied, an application under sub-rule (1) may be made against the legal representatives of the deceased and thereupon all the provisions of this rule shall, save as otherwise provided in this sub-rule, apply as if such legal representatives were the defaulter. Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability, the Recovery Officer executing the decree may, of his own motion or on the application of the applicant, compel such legal representative to produce such accounts as he thinks fit.'

It will be seen from the provisions of sub-rule (23) that the liability of the legal representatives is limited 'to the extent of the property of the deceased which has come to his hands and has not been duly disposed of'. It is also clear that if no property has come to the hands of the legal representatives of the deceased irrespective of whether the deceased left behind any property which was undisposed of, no recovery order can be passed against him. It is, therefore, clear that the prerequisite in an order of recovery is the coming to the hands of the legal representatives the undisposed of property of the deceased. The second limitation thereupon is that the liability is coexistence with the property received. There must, therefore, be two conditions which must be found as a matter of fact existing before any order for recovery is passed. The first of that conditions would be that any undisposed of property is left by the deceased. The second condition is that any such property of the deceased should have come to the hands of the legal representative. It is obvious that the deceased must before his death possess any such property.

18. When the Divisional Joint Registrar, therefore, proceeded to make an observation that 'there were no assets from which the dues of the Bank could be recovered', he seemed really to say that the only condition, and the most important condition, permitting the recovery against the legal representative did not as a matter of the fact exist. If there were no assets left by the deceased, it seems to us that it follows and is a necessary consequence that the legal representative cannot be proceeded against. in the present case, therefore, the orders do not disclose on their face that the two jurisdictional facts, namely, the possession of the property by the legal representatives of the deceased which is undisposed of and the extent (value) of that property so that to that extent recovery could be ordered against the legal representative. These have not been found as a matter of fact either by the Recovery Officer or by the Divisional Joint Registrar. In the absence, therefore, of proof of these two facts, neither the Recovery Officer nor the Divisional Joint Registrar could or had any jurisdiction to proceed against the legal representatives of deceased Madanlal, petitioner in this case. We are aware that the respondents have contented before us that the deceased left certain property which came to the hands of the petitioner. But as we have pointed out no such finding and no such statement appears in any of the two orders which are challenged in this petition.

19. We have also heard arguments on the question as to the stage at which such an enquiry is contemplated and whether the certificate issued in the instant case by the District Deputy Registrar should be quashed. Mr. Dhabe appearing for the petitioner addressed before us the contention that the certificate is an essential part of the recovery proceedings. He contented that this constitutes the authority of the proceedings and the source of order for recovery. If it affects the legal representative who is made a party to a proceeding or an enquiry, then before any such proceeding can be started against him on the basis of a certificate, the matter ought to be enquired into and the Registrar himself to hold an enquiry before issuing the certificate under Rule 107, sub-rule (23). On the other hand, Mr. Mohta contended upon an analogy and comparison of Section 98 and other sections in the Act in which certificate can be issued that while the other sections contemplate an enquiry, Section 98 does not. Mr. Mohta referred to Section 101 of the Maharashtra Co-operative Societies Act and Section 137 of the said Act.

20. The contention that the provisions of Sections 137 and 101 do contemplate an enquiry, we think, is well-founded. Section 137 (1) empowers the Registrar 'after making such enquiries as he deems fit' to grant a certificate for the recovery of the amount stated therein to be due as arrears. Before, therefore, a certificate is issued by the Registrar under Section 137 (1), he not only is empowered to hold an enquiry but appears to be obliged to hold such enquiries. Similar is the position in regard to Section 101. Both Sections 101 and 137 provide for issuance of certificates by the Registrar in case of specified societies and banks. Section 101 also employs similar terminology and expression. There the Registrar is required to issue a certificate 'after making such enquiries as he deems fit'. Both Sections 101 and 137 which are the two empowering sections besides Section 98 empowering Registrar to issue a certificate, employ the expression 'after making such enquiries as he deems fit' in the body of the section. Section 98 is another such section but it does not employ any such words. To us it appears that the reason for not requiring any such inquiry before the issuance of the certificate by the Registrar as contemplated under Section 98, pre-supposes and proceeds on the footing that an enquiry having already taken place. The orders which are contemplated there, are subject to appeals and also revisions and it is only in case of such orders which have become final and are not carried out, that a certificate can be issued by the Registrar. The only condition and only circumstance which has to exist before issuing a certificate under Section 98 is that the orders must not have been carried out. Non-fulfillment of the condition and does not require the exercise of any judgment or consideration before the issuance of a certificate, which depends upon an objective fact, namely, that the order has not been carried out. That may be one of the reasons why Section 98, though empowering the issue of a certificate by the Registrar is differently worded than Sections 101 and 137.

21. But it seems, however, to us that in a case like this where a certificate is already at one stage issued against the debtor under Section 98 by the Registrar, and execution is sought to be continued against the assists of the deceased the provisions of Section 98 of the Act do not fall for consideration. If the provisions in Chapter XII of the rules provide a complete Code for the purposes of execution, then we think, as we have pointed out earlier, the continuation of the recovery proceedings against the assets of the deceased has to be in terms of the provisions of Rule 107 in Chapter XII. As we have stated above, the continuation of recovery is against the assists of the deceased. The bringing on record of person who are in possession of the assets or property of the deceased to effectuate the recovery is a mere matter arising in execution. If that is so, and as we shall presently point out from the terms of Rule 107, sub-rule (23), it appears that no enquiry is contemplated at an earlier stage.

22. Such inquiry is contemplated only after the issuance of a certificate. It seems to us that if an enquiry was to be held even before the Registrar issues a certificate, as contended by Shri Dhabe, then the Recovery Officer would not be required to do anything further. If that were to be so, then we think that the latter part of sub-rule (23) would not have been expressed in the language in which it is. Besides, it may be that the Legislature may not have thought that the Registrar with his other duties should be property saddled with a further responsibility of holding an enquiry into the liability of the legal representative and the extent of the property which has fallen into the hands of the legal representatives of the deceased, and which of them and also an apportionment of that liability. This could as well be left, the Legislature seems to have thought, upon the recovery officer to person, who has less onerous duties to perform.

23. In a certificate which is issued under Rule 107, sub-rule (23), the circumstance that the certificate had already been issued against the debtor is, we think, one of importance. Sub-rule (23) does not as such speak of any certificate. The rule only makes the provisions of Rule 107 applicable against the legal representatives. Sub-rule (23) in our opinion falls into two parts The first part of the sub-rule (23) merely provides for the applicability of Rule 107 along with its sub-rules against the legal representatives. It only speaks of making of an application as contemplated by sub-rule (1) of Rule 107 against such legal representatives where the decree has not been satisfied. It is, therefore, a moot question as to whether any certificate is a necessity against the legal representatives before proceedings against them for recovery can be started. If that is so and the plain terms of the first part of sub-rule (23) do not necessarily suggest as inference requiring issuing a certificate under Section 98, then we think the contention advanced by Mr. Dhabe that a certificate cannot be issued under Section 98 against the legal representatives without giving a notice to them and without enquiry, is of no substance.

24. If any such certificate and the issuing of one is in terms not contemplated under Rule 107, sub-rule (23) and as application can straightway be made where the defaulter has died and the decree is not satisfied under sub-rule (1), then it seems to us that an enquiry by the Registrar into the circumstances which condition the liability of the legal representatives is also not contemplated. On the other hand, the latter part of sub-rule (23) suggests that such an enquiry shall be and ought to be held by the Recovery Officer. Though we do not think that the rule is happily worded, it seems to us that the clause 'for the purpose of ascertaining such liability', the Recovery Officer himself or on the application of the applicant may require production of any accounts or documents as he deems fit, suggests that it is the Recovery Officer who ought to hold such an enquiry. The Recovery Officer obviously as the expression suggests has 'to ascertain such liability'. If he has to ascertain the liability, which is has to ascertain the liability, which is contingent upon the existence of undisposed of assets of the deceased defaulter, and is further conditioned by such undisposed of assets coming to the hands of the legal representative, then it seems to us that it is a part of ascertainment of that liability for the Recovery Officer to also consider and find out whether as a matter of fact the deceased defaulter had left any property and further whether it has come to the hands of the legal representative.

25. It is only after such a finding is recorded by the Recovery Officer which is 'the ascertainment of such liability' with the further fact and circumstances has to be found by him, namely, the extent that the recovery can be ordered against that particular representative. It is possible that the property may be very small. It is possible that it has gone to the hands of more than one legal representatives, then each of such legal representatives to the extent of the value of the property received by him and coming to his hands would be liable for payment of the defaulter's dues. Recovery against such legal representative can be permitted and directed to the extent only and not more. We think, therefore, that though sub-rule (23) does not in so many words say that the Recovery Officer has to held an enquiry as to the existence of undisposed of property of the deceased and which of the legal representatives to whose hands the property has come and, therefore, the extent of the liability, it seems to us that it is an inbuilt obligation cast upon the Recovery Officer 'to hold and proceed to hold an enquiry where an application is made under sub-rule (1) into the undisposed of assets of the deceased and trace them.

26. The Recovery Officer, therefore, only in such circumstances, namely, that the deceased was possessed of property which was undisposed of and which has come into the hands of the legal representatives can direct recovery from out of that property against the legal representatives in whose hands the property is. He can also only to the extent or value of that property is not forthcoming and the legal representative does not, after a finding that he is possessed of that property and it has come to his hands produce that property, that it is then only that recovery can be directed against 'his' property. Unless, therefore, these jurisdictional facts are found and exist no recovery against the property of a legal representative can proceed.

27. There does not appear to have been any decision as to the forum and the occasion when such an enquiry has to be held. The learned counsel appearing for the petitioner and the respondents stated before us that there is no such decision given here before. We have, therefore, proceeded for ourselves to analyse the sections and the rules. Upon a fair interpretation and construction of Rule 107, sub-rule (23) asd the provisions of Section 98, it appears to us that such an enquiry is contemplated and has Court be held by the Recovery Officer to 'ascertain such liability'. It is he who has to hold an inquiry as to the undisposed of property left by the deceased defaulter coming to the hands of his legal representatives and the extent of that property, to determine the future course of recovery of the dues of the society or the bank. as the case may be.

28. Since in the present case, no such enquiry was held and no such facts were found, either by the Recovery Officer or by the Divisional Joint Registrar, we are of the view that both these authorities proceeded to pass orders and proceeded to direct recovery against the petitioner without jurisdiction. The proceedings, therefore, with the issuance of a notice dated 15-7-1981-Annexure-4 are liable to be quashed and are hereby quashed. It follows that when the notice dated 15th July 181 is quashed, as a consequence thereto orders passed both by the Recovery Officer and also by the Divisional Joint Registrar fall with it and are also quashed.

29. Mr. Dhabe for the petitioner also informs that consequent upon the earlier which was passed by the Recovery Officer, confirmed by the Divisional Joint Registrar, some deductions have been made from the salary of the petitioner and that orders are passed the employer requiring him to deduct a part of the salary. We have no hesitation in thinking and it seems to us to follow from our order, that the order directing deduction of such salary from the petitioner's emoluments also fails and cannot operate as a result of our order. It also follows, in our opinion, that on the quashing of the notice and consequential orders the parties would be relegated to the status quo ante namely, before this notice was issued and the benefits thereof will flow to whomsoever who is entitled.

30. We, therefore, allow the petition, make the rule absolute and quash the proceedings consequent upon the notice dated 15-7-1981 and orders therein and following thereto. We make no order as to costs.

31. Petition allowed.


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