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Mata Badal Singh Vs. Sahkari Sangh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 17 of 1961
Judge
Reported inAIR1967All281
ActsLimitation Act, 1908 - Schedule - Articles 181 and 182; Limitation (Amendment) Act, 1963 - Schedule - Articles 136 and 137; Co-operative Societies Act, 1912 - Sections 43(1); U.P. Co-operative Societies Rules - Rule 137 and 137(2)
AppellantMata Badal Singh
RespondentSahkari Sangh and ors.
Appellant AdvocateB.N. Asthana, Adv.
Respondent AdvocateK.C. Srivastava and ;Gopi Nath, Junior Standing Counsel
DispositionAppeal dismissed
Excerpt:
civil - applicability - sections 182 and 181 of limitation act, 1908 - application for execution of arbitration award for recovery of money under co-operative societies act, 1912 - governed by article 182 of limitation act not by article 181. - - that application had to be dismissed by the civil judge because he took the view that simultaneous proceedings for recovery of the amount awarded both through the collector as well as in the civil court could not be taken. the collector, however, failed to recover any part of the amount awarded and the proceedings before him therefore proved infruotuous. 8. we are, therefore, clearly of the view that article 182 of the limitation act will govern the case and not article 181 as argued by the learned counsel for the appellant......section 43 permits rule being made with regard to the method and mode of enforcement of such an award. rule 137 prescribes the two methods for the enforcement of the award. 10. it was then urged that the first sub-clause of rule 137 which provides for recovery of money under such an award as land revenue through the collector is the only provision for enforcement of an award under which money is recoverable. on this assumption it was submitted that the second sub-clause to rule 137 is not applicable to an award for recovery of money. we do not find anything in the language of the two sub-clauses which may justify such submission. the two modes for the enforcement of an award prescribed by that rule are not mutually exclusive but are alternative to each other. this being so there is no.....
Judgment:

1. This is an appeal from an order of the Civil Judge Basti dated 29th October 1960, by which the learned Civil Judge dismissed objections filed under Section 47 of the Code of Civil Procedure by the judgment-debtor against the execution proceedings. An award was made under the provisions of Cooperative Societies Act, 1912 by arbitrator on 8th February 1955 against the judgment-debtor in favour of the respondent Society. The actual relief granted under the award was for recovery of certain amount of money by the respondent from the appellant.

2. It appears that the award was sought to be enforced by issue of requisition to the Collector of the district of Basti who could recover the amount as arrears of land revenue within the meaning of Rule 137 framed under the aforesaid Act. Simultaneous with the aforesaid proceedings an application for enforcement of the award and for recovery of award amount was made in the Court of the Civil Judge, Basti purporting to be an application for execution as provided for by Rule 137, Sub-clause (2) framed under the aforesaid Act. That application had to be dismissed by the Civil Judge because he took the view that simultaneous proceedings for recovery of the amount awarded both through the Collector as well as in the Civil Court could not be taken. The Collector, however, failed to recover any part of the amount awarded and the proceedings before him therefore proved infruotuous. It was then that the respondentfiled the second application giving rise to the present appeal for the enforcement of the award in the Court of the Civil Judge, Basti.

3. The judgment-debtor filed objections purporting to be under Section 47, C. P. C. and raised the plea that the application for execution was not maintainable inasmuch as the decree-holder had previously sought to recover the amount awarded through the Collector as arrears of land revenue: that an earlier application for execution in the Civil Court had also been dismissed, that the application for execution was barred by limitation and lastly that the decree was incapable of execution inasmuch as the arbitrator had no jurisdiction to make the award against the judgment-debtor The learned Civil Judge as referred to above dismissed the objection of the judgment-debtor and he has preferred the present appeal in this Court.

4. The learned counsel for the appellant has urged before us that the article of Limitation Act applicable to such an application for execution was Article 181 and as the present application had not been filed within the period of three years as provided for under the said article, the application for execution is barred by time. In support of his submission, he has referred to Article 182 of the Limitation Act with a view to show that that article could not apply to such a case. According to him Article 182 of the Indian Limitation Act could apply in a case where the decree sought to be executed was a decree or order of a civil Court. In the instant case according to him, it is not a decree of the Civil Court which is being sought to be executed but an award by the arbitrator under the provisions of the Co-operative Societies Act.

5. Rule 137 framed under the aforesaid Act is as follows:--

'Award of arbitrators and decision of an Assistant Registrar may be enforced in either of the following ways:

(i) On a requisition to the Collector of the district made by the Registrar, all sums recoverable under the award or decision shall be recovered as if they were arrears of land revenue ,

(ii) On application to the civil Court having jurisdiction over the subject-matter of the award or decision as if it were a decree of the Court.'

Under Sub-clause (ii) of the above noted rule, for purposes of execution in a civil Court, an award made under the provisions of the Cooperative Societies Act has been placed on the same footing as a decree of the Court. It follows that all the provisions relating to execution of a decree as contained in the Code of Civil Procedure would be applicable to the execution proceedings in respect of such an award Order XXI of the Code of Civil Procedure lays down different modes of execution in respect of different types of decrees. For instance, a decree for money has to be executed in the mode prescribed by Rule 30 of the said order by detention in civil prisonof the judgment-debtor or by attachment and sale of his property, or by both; decree for specific movable property under Rule 31 is to be executed by the seisure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.

Likewise, Rule 32 provides for the mode of execution of decree for specific performance and decree in respect of conjugal rights, or for an injunction. Rule 34 similarly provides the mode for execution of decree for execution of documents or endorsement of negotiable instrument. Rule 35 provides the mode of execution of a decree for immovable property. On an application for enforcement of such an award, the Civil Court has first to look to the nature of the relief granted under the award in order to decide the question whether the particular award has to be treated as a decree for money or recovery of movables or for recovery of immovables etc. If the relief granted under the award is for recovery of money the execution must proceed on the basis that the decree under the execution was a decree for money. Methods prescribed for the execution of decrees other than money decrees would not be made applicable in such a case. It is, therefore, obvious that the award must be treated as a decree for recovery of money and not a decree of any other type for the purpose of execution. The question then arises whether Article 182 will or will not cover such a case. Article 182 provides for the execution of a decree or order of a Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908

If the court called upon to enforce such an award must treat it as an application for execution of a money decree of the civil Court, it must dismiss the application for execution if it finds that it is a fresh application for execution filed after the expiry of 12 years from the date of the decree as required by Section 48 of the Code of Civil Procedure. Section 48, C. P. C. is a provision which bars the execution of decree and is not related to the consideration of the origin of the decree. This being so, it cannot possibly be contended that the Civil Court had no jurisdiction to dismiss the prayer for execution or enforcement of the award as a decree of the civil Court if it came to the conclusion that the application had been filed beyond the period of 12 years from the date of decree as provided for under Section 48 of the Code of Civil Procedure. If for the purpose of Section 48 of the Code of Civil Procedure, the present application for execution must be treated as an application for execution of a decree of the Civil Court, there does not appear to be any reasonable ground for holding that for the purpose of Art. 182 of the Indian Limitation Act, the present application for execution should not be deemed to be an application for execution of a decree ofthe Civil Court. It may be noticed that Article 182 of the Limitation Act is a provision shutting out the execution of a decree and has no reference to the nature of the decree.

6. The learned counsel for the appellant has relied on a Full Bench decision of the Lahore High Court in Official Liquidator, Universal Bank Ltd. v. M.U. Qureshi, AIR 1945 Lah 146 (FB). The question referred to the Full Bench in that case was as follows:

'Whether by virtue of Section 199, Companies Act, an executable order made under the Companies Act is an order having the force of a decree within the meaning of Schedule 2, Article 11, Court Fees Act?'

The answer given by the Full Bench to the said query was in the negative. The following observation was made by their Lordships of the Lahore High Court:

'But, in my view, there is a distinction, both real and practical, and not merely artificial, as the learned A.A.G contends, between an order that has by statute the force of a decree and an order that may by statute be enforced in the same manner as a decree. An order that is given by statute the force of a decree is an order that proprio vigore stands as a decree whatever the consequences, where as an order that may by statute be enforced as a decree is an order that may be of little or no effect, proprio vigore and only becomes effective, when executed by the method by which a decree may be executed.'

Their Lordships of the Lahore High Court noticed a decision of this Court in (1895) ILR 17 All 238 (Reference under Section 28 of Act VII of 1870). This was a judgment by a Taxing Judge on a reference from a Taxing Officer. The observations made in the aforesaid decision of this Court and adopted by the learned Judges of the Lahore High Court were as follows:

'Section 166 certainly allows it (i.e. an order) to be enforced in the manner in which decrees of the winding up Court made in any suit pending therein may be enforced. But this is merely a provision as to the procedure which may be observed in enforcing the order. The mode in which an order may be enforced is not necessary an indication or a criterion of the nature of the order. There is a great difference and no inter-connection between the force of a decree and the method of enforcing it.'

7. The question referred to the Full Bench, it may be noticed, was the shorter question whether an executable order by virtue of Section 199, Companies Act is an order having the force of a decree within the meaning of Schedule II, Article 11, Court Fees Act. In the instant case, we are not concerned with the effect of the decree but we are only concerned with the question relating to the execution of the decree. Likewise, the decision of this Court noticed by their Lordships of the Lahore High Court also related to the question of court-fee and not to the execution of a decree The same Court in Anjuman Imdad Bahmi Qarza v. Imam Din, AIR 1947 Lah 269 dealt withthe question directly involved in the appeal before us. In that case it was observed:

'From the opinion of the Lord Justices cited above it is quite clear that there is really no distinction between the expression 'be enforced in the same manner as a judgment' or 'be enforced as if it were a judgment of a Court'. These are alternative expressions and there is no real distinction between them so as to affect the decision of a case. It seems to me that the distinction drawn in the Bombay and the Calcutta judgments, I speak with great respect, is a distinction without a difference. If I may respectfully point out the Civil Procedure Code lays down the manner of executing a decree and one of the provisions of the Code of Civil Procedure is that it can be executed at the outside within a period of 12 years subject of course to the limitations prescribed in Article 182, Limitation Act. The same manner has been provided for enforcing an award given under the Co-operative Societies Act. In my opinion the manner of execution includes not only the method of recovery of the amount awarded by the decree but also includes the limitation of time within which recovery can be made An award can be enforced in the same manner that a decree could be executed.'

His Lordship proceeded finally to say:

'In my judgment, therefore, 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 Procedure Code.' To the same effect is the view taken by the Madras High Court in the case S.V. Subba Rao v. Calicut Co-operative Urban Bank Ltd. AIR 1939 Mad 304. II was observed in the said case: 'If therefore an application to enforce an award is made to a Civil Court, for the purpose of enforcement, the Legislature enacts that it should be treated as a final decree of that Court. Thus, by statute the award of the Registrar under Section 51 of the Act is given the same status as a decree of a Civil Court for the limited purpose of execution and the provisions of law relating to the enforcement of decrees of such Courts including the law of limitation applicable for such enforcement will apply by necessary implication.'

In somewhat similar circumstances their Lordships of the Supreme Court in the case, Smt. Prativa Bose v. Kumar Rupendra Deb : [1964]4SCR69 , held that Article 181 of the Limitation Act would not apply to such an application.

8. We are, therefore, clearly of the view that Article 182 of the Limitation Act will govern the case and not Article 181 as argued by the learned counsel for the appellant. It is conceded before us that if Article 182 be applicable, then the application for execution is within time.

9. It was next urged before us that Section 43 of the Co-operative Societies Act does not permit making of rules with regard to enforcement or execution of an award through civil Court. We are unable to agree with this submission because Section 43 permits rule being made with regard to the method and mode of enforcement of such an award. Rule 137 prescribes the two methods for the enforcement of the award.

10. It was then urged that the first Sub-clause of Rule 137 which provides for recovery of money under such an award as land revenue through the Collector is the only provision for enforcement of an award under which money is recoverable. On this assumption it was submitted that the second sub-clause to Rule 137 is not applicable to an award for recovery of money. We do not find anything in the language of the two sub-clauses which may justify such submission. The two modes for the enforcement of an award prescribed by that rule are not mutually exclusive but are alternative to each other. This being so there is no force in the contention that having once sought to recover the amount under the award as land revenue through the Collector, the decree-holder respondent is not entitled to take proceedings in the civil Court for the execution or enforcement of the award.

11. The other objection to the effect that the decree is incapable of execution inasmuch as the arbitrator had no jurisdiction to give an award against the appellant is equally untenable. The execution court cannot go behind a decree and investigate an objection of that sort.

12. We are therefore of the opinion thatthe objections under Section 47, C. P. C. were rightly dismissed by the Court below and there is no force in this appeal. The appeal is dismissed with costs.


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