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Mathura Prasad and anr. Vs. Sheobalak - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All419; 42Ind.Cas.968
AppellantMathura Prasad and anr.
RespondentSheobalak
Excerpt:
.....of the case, because we 'are all interested in the good working of the cooperative societies act, it seems to us that probably the liquidator was wrong in passing an order that each of these debtors' should be jointly and severally liable for the amount of each other's mortgage......the provisions of section 42, (5) (a). the court: ordered execution. on appeal to the district judge the appeal was dismissed. a second appeal has now been preferred to this court. it is strongly contended on behalf of the appellants that the order of the liquidator was bad. it is said that while the liquidator had a perfect right to determine the 'contributions' to be made by the members of the society, he could not make them jointly and severally liable for each other's debts more particularly where, as in the present case, he had taken a mortgage from each of the debtors for the amount of his debt. on the other side it is objected that the subordinate judge was bound to execute the order of the liquidator and that he could not consider whether that order was right or wrong, that.....
Judgment:

1. This appeal arises under the following circumstances. There was a society registered under the Co-operative Societies Act, II of 1912. The society got into debt. Its registration was cancelled and a liquidator appointed. There were a number of persons who were members of the society and had received advances. The liquidator took mortgages from each of the debtors for the amount of their liability. He then proceeded to make an order, which purported to be made under Section 42 (6), determining that each of the debtors should be jointly and severally liable for the full amount of the several debts. This order was sought to be enforced, in the Civil Court having; local jurisdiction under the provisions of Section 42, (5) (a). The Court: ordered execution. On appeal to the District Judge the appeal was dismissed. A second appeal has now been preferred to this Court. It is strongly contended on behalf of the appellants that the order of the liquidator was bad. It is said that while the liquidator had a perfect right to determine the 'contributions' to be made by the members of the society, he could not make them jointly and severally liable for each other's debts more particularly where, as in the present case, he had taken a mortgage from each of the debtors for the amount of his debt. On the other side it is objected that the Subordinate Judge was bound to execute the order of the liquidator and that he could not consider whether that order was right or wrong, that no appeal lay to the District Judge and that no second appeal lies to this Court.

2. We think all these objections have force. If the order of the liquidator can possibly be said to be an order under Section 42, then the Subordinate Judge, being the Civil Court mentioned in subsection (5), Clause (a), had no option' but to enforce the order. It seems to us clear that no appeal lies save appeals expressly given by the Act and that no second appeal lies to this Court. It, is quite clear that the policy of the. Act was that matters arising under the Act should be settled without litigation in the Courts. If litigation were permitted, the whole object of the of operative Societies Act would be defeated. We think that in the present case we may depart from our usual practice of not saying anything which is not absolutely necessary for the decision of the case, because we 'are all interested in the good working of the Cooperative Societies Act, It Seems to us that probably the liquidator was wrong in passing an order that each of these debtors' should be jointly and severally liable for the amount of each other's mortgage. If he required money for the purposes of liquidation and for the discharge of the debts of the society, he had clear power to determine the contributions to be made,' and we think that it would have been more correct had he made his order in this form and then proceeded to take' steps to recover from each mortgagor the amount of his mortgage. We dismiss the appeal. The liquidator will get his costs in this appeal as part of his costs in the liquidation. The appellants will pay their own costs.


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