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N. Sreenivasa Murthy Vs. Sri Vyasarajendra Co-operative Bank Ltd. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Limitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 318 of 1952-53
Reported inAIR1954Kant54; AIR1954Mys54
ActsMysore Co-operative Societies Act, 1948 - Sections 52, 54(1), 60, 60(3), 65, 72 and 72(2); Limitation Act, 1908 - Schedule - Articles 181 and 182; Code of Civil Procedure (CPC), 1908 - Sections 2(2) and 48; Co-operative Societies Act, 1942 - Sections 43; Co-operative Societies Act, 1918 - Sections 43; Arbitration Act; Indian Companies Act - Sections 190; Mysore Limitation Act, 1911 - Schedule - Article 182
AppellantN. Sreenivasa Murthy
RespondentSri Vyasarajendra Co-operative Bank Ltd.
Appellant AdvocateGulur Sreenivasa Rao, Adv.
Respondent AdvocateC.K. Narayana Rao, Adv.
.....limitation as regards enforcement of award passed under act under consideration - application for execution of award filed within three years from grant of certificate but more than three years from date of passing of award - court observed certificate being basis for jurisdiction of civil court section 43 attracted only after certificate granted - only when certificate granted award became decree - execution petition held to be within limitation period. - karnataka societies registration act, 1960 (17 of 1960) section 9: [n. kumar, j] power of review - in the instant case, the registrar passed an order dated 24.11.2006 directing the second respondent to change the name of its society. the second respondent was informed that in the event of failing to do the same, action shall be..........the case was dismissed on 4-2-1944. subsequently on a second certificate dated 25-5-1948 by the registrar, execution no. 1470/45-48 was filed in the court of small causes, bangalore. the petitioner objected to the execution but the objections were overruled in an order of 16-1-1947. against this order he filed c. r. p. 341 of 1946-47 in this court. during the pendency of the revision petition, there was a compromise as per rajinama filed on 4-12-1947 and the revision petition was dismissed on 5-1-1948. the amount payable according to the rajinama not having been paid by the petitioner, the respondent society filed execution no. 1092 of 48-49 and execution no. 443/49-50. these were dismissed for default on 24-3-1949 and 2-3-1950 respectively. thereafter execution no. 1301-50-51 was.....

Venkata Ramaiya, J.

1. A question of limitation as regards the enforcement of an award passed under the Mysore cooperative Societies Act, is raised in this case. As the point involved is considered to be of importance and the decision is likely to affect other proceedings the case has been referred to a Division Bench.

The award enforcement of which is objected to as being barred by time was passed on 17-12-1934. On a certificate issued by the Registrar under Section 43, Co-operative Societies Act on 24-11-1942 for execution of the Award in the Civil Court, Execution Case No. . 1544 of 42-43 was filed in Hassan Munsiff's Court on 24-5-1943 against the petitioner. No money was realised and the case was dismissed on 4-2-1944. Subsequently on a second certificate dated 25-5-1948 by the Registrar, Execution No. 1470/45-48 was filed in the Court of Small Causes, Bangalore. The petitioner objected to the execution but the objections were overruled in an order of 16-1-1947. Against this order he filed C. R. P. 341 of 1946-47 in this Court. During the pendency of the Revision Petition, there was a compromise as per rajinama filed on 4-12-1947 and the revision petition was dismissed on 5-1-1948. The amount payable according to the rajinama not having been paid by the petitioner, the respondent Society filed Execution No. 1092 of 48-49 and Execution No. 443/49-50. These were dismissed for default on 24-3-1949 and 2-3-1950 respectively. Thereafter Execution No. 1301-50-51 was filed on 5-1-1951 and the correctness of the order holding this to be in time is now challenged.

2. Section 43(c), Co-operative Societies Act 7 of 1918 provides:

'Every order the Registrar or his nominee or arbitrators on disputes referred to him or them under Section 43(A) shall, if not carried out,

(a) be executed on a certificate signed by the any Civil Court in the same manner as a decree of such Court.....'

According to the decisions in -- '44 Mys H. C. R. 528 (A) and -- '47 Mys H. C. R. 230 (B)', the period of time within which execution may be applied for is three years under Article 181, Schedule I of the Limitation Act and time begins to run not from the date of the Award but from the date on which the certificate is granted. There is reference in -- '47 Mys H. C. R. 230 (3)', to the view in --'Subba Rao v. Calicut Co-operative Urban Bank Ltd.' AIR 1939 Mad 304 (C), that Article 182 and not Article 181 is applicable to such a, case and to -- 'Subba Rao v. Calieat Co-operative Urban Bank Ltd. AIR, 1940 Mad 635 (D), wherein that view was upheld in appeal. The view of the Bombay High Court in -- 'Raghavendra Hanmant Rao v. Industrial Bank, Guledgud' AIR 1936 Bom 396 (E), to which importance seems to have been attached on account of the similarity between the Acts in Mysore and Bombay has been explained in ether cases as not a clear authority to show that Article 181 is applicable to the enforcement of awards.

In two cases -- 'Bhimsen Hanmant v. Urban Bank, Muddebihal' AIR 1947 Bom 370 (P) and -- 'Muppanna Malkappa v. Shree Gajanan Urban Co-operative Bank Ltd. AIR 1947 Bom 375 (G), it has been definitely held, after a review of the cases bearing on the point that Article 182 is applicable. To the same effect is the decision in --'Anjuman Imdad Bahmi Qarza v. Imam Din' AIR 1947 Lah 269 (H), where an award of 1937 was sought to be executed in 1943, after a number of applications in the interval, Mahajan J. in the course of the judgment referred to the words 'Enforce it as if it were a judgment' as being synonymous with 'Enforced in the same manner as a judgment' and to Section 190, Indian Companies Act containing the same words and observed

'.....the Courts below and the learned single Judge were in error when to the enforcement of the award in question Article 181, Limitation Act was applied. The article applicable is Article 182 read with Section 48, Civil P. C.'

Reference is made in those cases to the construction in--'Belvedere Jute Mills Ltd. v. Hardwarimull and Co : AIR1927Cal853 , of similar words providing for execution of awards under the Arbitration Act, The application in the present case will be barred by time if Article 181 applies as laid down in the earlier cases of this Court and be saved from the bar if Article 182 applies as held by the other High Courts, it is unnecessary to seek a reconsideration of the question as to which is the correct view to be adopted since the Act on the provisions of which the two decisions of this Court, were based has since been repealed and replaced by a new Act No. 3 of 1948. Section 65 of this Act which was not found in the previous Act states:

'The Registrar or any person empowered by him in this behalf, shall be deemed .....when passing any orders .....on any application made to him for such recovery or to take some step-in-aid of such recovery, to be a Civil Court for the purposes of Article 182 of the first schedule to the Mysore Limitation Act, 1911'.

Section 72(2) declares

'All .....suite and proceedings instituted under the said Act (the Act of 1918) shall, so far as may be, be deemed to have been ..... instituted under this Act'.

In --'Hassan Co-operative Society v. H.S. Suryanarayanappa' AIR 1952 Mys 127 (J), Section 65 of the new Act is held to have retrospective operation so as to make Article 183 applicable to application for execution of awards made under the prior Act. Sri Gulur Srinivasa Rao did not contest this but strenuously urged that Section 48, Civil P. C., would operate as a bar as the interval between the date of the award and the present application is more than 12 years. Emphasis was laid on the words in Section 65:

'The Registrar ..... shall be deemed when exercising any powers under this Act ..... to be a civil Court', and on Sub-section (3) of Section 60 which states: 'In computing the period of limitation for execution by a Civil Court of an order passed under Section 52, the time during which proceedings in execution were taken before a Deputy Commissioner on an application made under Clause (b) of Sub-section (1) of Section 54 shall be excluded',

in order to show that the period of 12 years has to be computed from the date of the award and that the award must be deemed to be a decree from the date it was passed. No case either of this Court or any other in which the award is held to be a decree either from the inception or before the issue of a certificate for enforcement in the Civil Court has been cited before us.

On the other hand, it has been stated in -- 44 Mys H. C. R. 528 at p. 535 (A):

'The award by itself without the sanction of the Registrar will not be capable of enforcement and it is only the certificate given by the Registrar that enables a party to apply for realising the fruits of the award. In those circumstances it seems to us to be very unreasonable to hold that though the Registrar may grant the certificate at a later date it must be taken to date back to the date of the award itself'.

Section 48, Civil P. C. is no doubt mentioned in Article 132, Limitation Act but the restriction imposed by it affects only execution of decrees of a particular kind in Civil Court. The definition of 'decree' does not include an award under the Co-operative Societies Act. The award acquires and is invested with the status of a decree only when a certificate is granted by the Registrar and execution proceedings in the Civil Court are not possible without the certificate. The award remains merely an award till the certificate is issued and proceedings other than those in the Civil Court are provided for to enforce it. Except to the extent allowed in the Act itself, the Civil Procedure Code or the Limitation Act cannot govern those proceedings. The certificate being the basis for the jurisdiction of the Civil Court, Section 43, Civil P. C. can be attracted only after it is granted and by virtue of the grant, it becomes a decree and not before. As the application for execution of the award was filed within three years from the grant of certificate the later applications are all filed within the same time from one another and the present application is not beyond 12 years from the date of the certificate. The objections of the judgment-debtor to the enforcement of the award on the ground Of limitation are untenable.

3. The petition is dismissed with costs.

4. Revision dismissed.

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