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Sivaji Ramji Patil Vs. Jalgaon Fal Wa Bhajipala Vikri Karnari Sahakari Mandali - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSecond Application No. 523 of 1973
Judge
Reported in(1978)80BOMLR519; 1978MhLJ801
AppellantSivaji Ramji Patil
RespondentJalgaon Fal Wa Bhajipala Vikri Karnari Sahakari Mandali
DispositionAppeal dismissed
Excerpt:
.....of the award through a civil court filed after the expiry of the period of twelve years from the date of the award, barred by limitation.;there is nothing in clause (a) of section 59 to indicate that an award made by the officer on special duty under the bombay ca-operative societies act, 1925 is a decree itself. what clause (a) permits is the manner of executing an award and it provides that if a certificate from the registrar is obtained then the award shall be deemed to be a decree and shall be executed in the same manner as a decree of a civil court. the very fact that it is deemed to be a decree clearly indicates that but for this provision it is not a decree. it is quite apparent that an award made under the act does not become a decree of a civil court even upon the issuance of..........as the award itself is a decree and the present darkhast is filed more than twelve years after the date of the award it is barred by limitation. his second submission is that issuance of a certificate by the registrar as contemplated by section 59 of the act should be regarded as a step in aid within the meaning of article 181 of the limitation act, 1908 and as in the present case such a certificate has been issued by the registrar more than twelve years from the date of the award, granting of such certificate should be treated as a step in aid and the darkhast should be barred by limitation as it is instituted more than twelve years after the date of the award.3. section 59 of the act provides the manner in which money under an award can be recovered. the relevant part thereof.....
Judgment:

R.M. Kantawala, C.J.

1. The judgment debtors Nos. 1 to 3 have filed this appeal against an order passed by the learned district Judge, Jalgaon rejecting the contention of the judgment debtors that the darkhast application is barred by limitation and ought to be dismissed in limine. As the point involved in both the appeals is the same, it will suffice for the present purpose if reference is made to the facts in Second Appeal No. 523 of 1973. On March 6, 1957 an award in respect of a monetary claim was made by the Officer on Special Duty under the Bombay Co-operative Societies Act, 1925 (hereinafter referred to as 'the Act'). On September 26, 1969 a certificate was issued by the Registrar of Co-operative Societies as contemplated by Section 59 of the Act. On April 2, 1970 the decree-holder filed a darkhast being darkhast Ho. 109 of 1970 for execution of this award through the civil Court. The trial Court held that the darkhast application was barred by limitation and dismissed it. In an appeal preferred by the decree holder the order passed by the trial Court was reversed and the darkhast was remanded back to the executing Court for disposal in accordance with law. It is against this order of the learned district Judge that this second appeal is filed by judgment debtors Nos. 1 to 3.

2. Mr. Karmarkar on behalf of the judgment debtors has urged two contentions before me. His first submission is that an award made by the Officer on Special Duty under the provisions of the Act is itself a decree even without a certificate being issued by the Registrar as contemplated by Section 59 of the Act, He therefore submitted that as the award itself is a decree and the present darkhast is filed more than twelve years after the date of the award it is barred by limitation. His second submission is that issuance of a certificate by the Registrar as contemplated by Section 59 of the Act should be regarded as a step in aid within the meaning of Article 181 of the Limitation Act, 1908 and as in the present case such a certificate has been issued by the Registrar more than twelve years from the date of the award, granting of such certificate should be treated as a step in aid and the darkhast should be barred by limitation as it is instituted more than twelve years after the date of the award.

3. Section 59 of the Act provides the manner in which money under an award can be recovered. The relevant part thereof states:

Every order passed...by the Registrar or his nominee or arbitrators in disputes referred to him under Clause (g) of Section 50 or under Section 54...shall, if not carried out-

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

(b) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue, provided that any application for the recovery in such manner of any such sum shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or by an Assistant Registrar to whom the said power has been delegated by the Registrar. Such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order.

It is clear from the provisions of Section 59 that there are two modes in which an award made under the Act can be executed. The first contention of Mr. Karmarkar is that having regard to Clause (a) an award made by the Officer on Special Duty is itself a decree even without obtaining a certificate from the Registrar and if it is a decree, then having regard to the provisions of the Limitation Act as well as the Code of Civil Procedure execution of such a decree will be barred by limitation after the expiry of a period of twelve years from the date of the award. On a plain reading of the section such a contention cannot be accepted. There is nothing in Clause (a) above to indicate that an award made by the Officer on Special Duty under the Act is a decree itself. What Clause (a) permits is the manner of executing an award and it provides that if a certificate from the Registrar is obtained then the award shall be deemed to be a decree and shall be executed in the same manner as a decree of a civil Court. The very fact that it is deemed to be a decree clearly indicates that but for this provision it is not a decree. It is quite apparent that an award made under the Act does not become a decree of a civil Court even upon the issuance of a certificate by the Registrar. Reference can be made to the decision of a Division Bench of this Court in Muppanna v. Gajanan Urban Co-operative Bank (1946) 49 Bom. L.R. 168 One of the things decided by the Division Bench of this Court in this decision is that on the issue of a certificate by the Registrar under Section 59(1)(a) of the Act the award made under Section 54 of the Act does not become a decree of a civil Court. Thus the very contention which is made by Mr. Karmarkar that the award itself is a decree is negatived by this decision. On the contrary the observations at p. 171 clearly point out that there is a distinction between 'becoming a decree of the Court' and 'shall be deemed to be a decree of the Court.' At p. 171 the Division Bench points out:.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, 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.

These observations clearly answer the first contention which has been urged by Mr. Karmarkar and it is not possible for me to accept his submission that the award itself is a decree of the Court and any darkhast application filed after the expiry of the period of twelve years from the date of the award is barred by limitation.

4. That takes me to the second contention urged by Mr. Karmarkar. His submission is that the issuance of a certificate by the Registrar as contemplated by Section 54 of the Act is a step in aid of execution of the award. Barring the bare contention there is nothing to support this contention. What Section 59 requires is, if a party in whose favour an award for money is made under the Act, then either for executing it through a civil Court or executing it through the Collector, a certificate signed by the Registrar is necessary. We are concerned in the present case with the execution through a civil Court and the relevant provision in that behalf is contained in Clause (a). Under that section an order under Section 54 of the Act shall, if not carried out on a certificate signed by the Registrar, 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 very language of this provision clearly indicates that unless a certificate is granted by the Registrar as contemplated by this clause it cannot be deemed to be a decree of a civil Court. Issuance of such a certificate has nothing to do with step in aid as contemplated under the Limitation Act. The very words used in Clause (a) of Section 59(1) indicates that an award is deemed to be a decree of a civil Court only if a certificate is issued by the Registrar. Even though in the present case the certificate was issued by the Registrar more than twelve years after the date of the award, still such an award is deemed to be a decree only upon issuance of such a certificate and as the present darkhast was filed within a period of less than three years in the year 1970 and the certificate was issued in the year 1969 it is not possible for me to take the view that the darkhast is barred by limitation.

5. It will not be out of place in this connection to refer to a decision of the Gujarat High Court in the case of Khoda v. Gajanan Sahkari Pedhi Ltd. (1961) 3 Guj. L.R. 512. Therein it has been held that the date of the decree for the purpose of limitation under Section 48 of the Code of Civil Procedure, 1908 in cases where awards or orders have been passed on a reference under Section 54 of the Bombay Co-operative Societies Act, 1925, and where a certificate has been granted, as provided by Section 59(1)(a) of that Act, is the date when the certificate is signed and not the date when the award was made or the order was passed. This decision, therefore, directly answers the contentions urged by Mr. Karmarkar and negatives his submissions.

6. In the result, in my opinion the appellate Court was right in taking the view that the darkhast application was not barred by limitation on the date when it was instituted.

7. Both the appeals therefore fail and are dismissed with costs.


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