Skip to content


Karimnagar Dist. Co-op. Central Bank Ltd. Vs. Mogili Bakka Veeraiah and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 2249 of 1979
Judge
Reported inAIR1981AP180
ActsAndhra Pradesh Co-operative Societies Act, 1964 - Sections 126; Andhra Pradesh Co-operative Societies Rules, 1964 - Rule 52; Government Demands Act, 1308 Fasli - Sections 6; Code of Civil Procedure (CPC), 1908 - Sections 80 - Order 7, Rule 11 - Order 21, Rules 58 and 63; Madhya Pradesh Land Revenue Code - Schedule - Rule 13(2)
AppellantKarimnagar Dist. Co-op. Central Bank Ltd.
RespondentMogili Bakka Veeraiah and anr.
Appellant AdvocateP.V. Narayana Rao, Adv.
Respondent AdvocateA. Anand Reddy, Adv.
DispositionPetition allowed
Excerpt:
trust and societies - notice - section 126 of a. p. co operative societies act, 1964 and rule 52 of a. p. co operative societies rules, 1964 - co operative society attached one of its members property for arrears - claim petition rejected - suit filed under rule 52 but without serving notice - suit not maintainable as notice under section 126 not served - disputes to which notice has to be served under section 126 should not be restricted only to matters arising out of business but includes business someway connected with business of society. - - pradesh air1963ap164 is no longer good law, in view of the decision of the supreme court in sawai singhai v. state of andhra pradesh, air1963ap164 (supra) cannot be considered to be good law......then the learned judge referred to the provisions of the government demands act, and held that a suit filed under section 6 of that act was really a continuation of the proceedings initiated by the taluqdar under that act and, therefore, no notice under section 80. c. p. c. was necessary before the suit was filed under that act.8. in sawai singhai v. union of india, : [1966]1scr988 (supra) the question that arose for consideration before the supreme court was whether a suit filed in pursuance of order 21, rule 63 of the code of civil procedure attracted the provisions of section 80 of the code. the supreme court after distinguishing phul kumari v. gharishyam misra, (1908) ilr 35 cal 202 (pc) (supra) held that, on a fair and reasonable construction of section 80, it was not possible to.....
Judgment:
ORDER

1. The 1st defendant, Karimnagar District Co-operative Central Bank Limited, is the petitioner. The 2nd defendant Thota Veeraiah, is a member of the Co-operative Society, Ramadugu. He was in arrears of Rs. 810/- to that Society. The Sale Officer of the 1st defendant's Bank attached the standing crops on his lands, for the arrears. It is the case of the plaintiffs that the 2nd defendant is only having 1/4th share in the lands. They filed a Claim Petition under Rule 52 of the A. P. Co-operative Societies Rules 1964, for release of the attached paddy before the Sale Officer. Later on they were informed on 7th October, 1976 that the petition was dismissed on 9th Oct., 1975. Subsequently, they filed a suit on or about 17th December, 1976 in the Court of the District Munsif, Karimnagar against the Karimnagar District Co-operative Central Bank (1st defendant) and Thota Venkaiah (2nd defendant) to recover Rs. 350/- from the 1st defendant (Co-operative Central Bank, Karimnagar) and to pay Rs. 300/- to the 1st plaintiff and Rs. 50/- to the 2nd defendant towards their share of the produce from the lands.

2. An Interlocutory Application was filed by the 1st defendant-Bank stating that the suit was not maintainable, since, notice was not given to it under Section 126 of the Andhra Pradesh Co-operative Societies Act, 1964 (hereinafter referred to as 'the Act') before filing the suit. The learned District Munsif dismissed that petition relying upon a Division Bench decision of this Court in Hussain Ali Mirza v. State of Andhra Pradesh, : AIR1963AP164 . Questioning that order the 1st defendant (Bank) has filed this revision.

3. It is submitted by the learned counsel for the petitioner that Hussain Ali Mirza v. State of Andh. Pradesh : AIR1963AP164 is no longer good law, in view of the decision of the Supreme Court in Sawai Singhai v. Union of India, : [1966]1SCR988 .

4. Section 126 of the Andhra Pradesh Cooperative Societies Act, 1964 reads as follows:--

'No suit snail be instituted against a society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of sixty days next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left.'

This provision is similar to Section 80 of the Code of Civil Procedure. It is not disputed that giving a notice in terms of the Section before filing of the suit against the Society is mandatory. In view of the Full Bench decision of the Madras High Court in Madhava Rao v. Surya Rao, : AIR1954Mad103 the words 'touching the business of a society' in Section 126 must be given their full import bearing in mind the object of the legislation. The disputes are not to be restricted to matters arising from and out of the business of the society, but are also (sic) (to be) extended to matters which are in some way concerned or related to the business of the society. The word 'business' is not used in a narrow sense. In order to determine the business of the society, one has to look into the provisions of the Act, the rules and the Bye-laws framed by the society. All matters comprised in them or incidental or are necessary for carrying out those matters must be deemed to be the business of the society.

5. In view of this decision, it has to be held that the suit relates to the business of the society, for it was filed in effect to set aside the claim order, which was in its terms filed when the standing crops of the plaintiffs were attached for arrears due to the Cooperative Society.

6. In Hussain Ali Mirza v. State of Andhra Pradesh, : AIR1963AP164 (supra) the question for consideration was whether a suit under Section 6 of the Government Demands Act (No. IV of 1308 Fasli) was maintainable, though the notice prescribed by Section 80. Civil Procedure Cede was not given by the plaintiff to the Government. The suit was dismissed on a preliminary ground that notice under Section 80, C. P. C. was not given.

7. After referring to Phul Kumari v. Gharishyam Misra, (1908) ILR 35 Cal 202 (PC); Raja of Ramnad v. Subramaniam Chettiar, (AIR 1928 Mad 1201); Venkataraju V. Suryanarayana, (AIR 1943 Mad 248) and Mahomed Yousuf v. Province of Madras, (AIR 1943 Mad 341) the learned Judges observed that a notice under Section 80, Civil P. C. need not be given before a suit under Order 21, Rule 63 could be filed, for that suit is in the nature of an appeal from the order passed on the Claim Petition. Then the learned Judge referred to the provisions of the Government Demands Act, and held that a suit filed under Section 6 of that Act was really a continuation of the proceedings initiated by the Taluqdar under that Act and, therefore, no notice under Section 80. C. P. C. was necessary before the suit was filed under that Act.

8. In Sawai Singhai v. Union of India, : [1966]1SCR988 (supra) the question that arose for consideration before the Supreme Court was whether a suit filed in pursuance of Order 21, Rule 63 of the Code of Civil Procedure attracted the provisions of Section 80 of the Code. The Supreme Court after distinguishing Phul Kumari v. Gharishyam Misra, (1908) ILR 35 Cal 202 (PC) (supra) held that, on a fair and reasonable construction of Section 80, it was not possible to hold that a suit filed under Order 21, R. 63 could be taken out of the provisions of Section 80 of the Code. When it was contended that a suit under Order 21, R. 63 is a continuation of the attachment proceedings, and as such, could not be regarded as a suit proper which is included within the purview of Section 80, it was observed by the learned Judges, that it will be unreasonable to hold that for all purposes a suit brought under Order 21, Rule 63 is either a continuation of the objection proceedings or is a form of an appeal against the order passed in them. They observed that the scope of enquiry under Order 21, Rule 58 is very limited and is confined to question of possession, while a suit brought under Order 21, Rule 63 could be concerned not only with the question of possession, but also with the question of title. Thus, the scope of the suit is very different from and wider than that of the investigation under Order 21, Rule 58. Therefore, they held that it would not be possible to hold that a suit is outside the purview of Section 80 of the Code.

9. In view of this decision of the Supreme Court, I hold that Hussain Ali Mirza v. State of Andhra Pradesh, : AIR1963AP164 (supra) cannot be considered to be good law.

10. In Ebrahimbhai v. State, : AIR1975Bom13 a Division Bench of the Bombay High Court held, that a claim suit against the Government filed under Rule 13 (2), Schedule II of the M. P. Land Revenue Code, which is analogous to a claim suit under Order 21, Rule 63 of the Civil Procedure Code, is a suit against the Government within Section 80 of the Code, and if instituted without previous notice as required by the section, it will be premature and an order rejecting it under Order 7, Rule 11 of the Civil Procedure Code cannot be said to be wrong. They followed Sawai Singhai v. Union of India, : [1966]1SCR988 (supra). They held that Muhammad Yousuf v. Province of Madras, (AIR 1943 Mad 341) (supra), Hussain Ali Mirza v. State of Andhra Pradesh, : AIR1963AP164 (supra); Ram Sundri v. Collector, (supra) and Hiraluxmi v. I.-T. Officer, : [1955]27ITR643(Patna) , which have taken the view that a claim petition is in the nature of an appeal and continuation of the proceedings, and no notice is necessary under Section 80, C. P. C, have not laid down correct law, in view of the decision of the Supreme Court in Sawai Singhai v. Union of India, : [1966]1SCR988 .

11. It was submitted by the learned counsel for the respondents that the facts in Hussain Ali Mirza v. State of Andhra Pradesh, : AIR1963AP164 (supra) are different, and the decision in Sawai Singhai v. Union of India (supra), is distinguishable. I do not agree. The question of law that arose for consideration in both the cases is the same. In the result, I hold, that the tower Court erred in holding that in view of Hussain Ali Mirza v. State of Andhra Pradesh (supra), notice to the Karimnagar District Co-operative Central Bank Limited (1st defendant) was not necessary under Section 126 of the Andhra Pradesh. Co-operative Societies Act.

12. A Claim Petition is filed under R. 52, Sub-rule (21) of the Andh. Pradesh Co-operative Societies Rules, 1964. It is similar to Order 21, Rules 58 and 63, C. P. C. Under Clause (c) of that rule, when a claim petition is rejected, a suit has to be filed within six months from the date of that order.

13. I hold that the present suit filed by the plaintiffs against the Karimnagar District Co-operative Central Bank Limited (1st defendant) without giving the requisite notice under Section 126 of the Andhra Pradesh Co-operative Societies Act, is not properly instituted. Accordingly, I set aside the order of the learned District Munsif, Karimnagar and allow this revision, but in the circumstances of the case, without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //