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Jethabhai Chhaganbhai Chamar and ors. Vs. A.K. Shah Addl. District Registrar of Co-op. Societies and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR1337
AppellantJethabhai Chhaganbhai Chamar and ors.
RespondentA.K. Shah Addl. District Registrar of Co-op. Societies and ors.
Excerpt:
- - since the proceedings were taken out long after the expiry of the period of twelve years they were clearly barred by limitation......between december 1961 and march 1962, the remedy became barred by limitation and issuance of fresh certificates in favour of the liquidator in october 1977 could not give a fresh lease of life to a remedy which had already become time barred.2. section 103 of the act which is relevant for our purpose reads as under:103. every order passed by the registrar or a person authorised by him under section 9, or by the registrar, his nominee or board of nominee under section 100 or 101, every order passed in appeal under section 102, every order passed by a liquidator under section 110, every order passed by the state government in appeal against orders passed under section 110, and every order passed in reversion under section 155, shall, if not carried out,:(a) on a certificate signed by.....
Judgment:

A.M. Ahmadi, J.

1. This petition is directed against the effort of the liquidator appointed under Section 108 of the Gujarat Co-operative Societies Act, 1961 (for short 'the Act') to recover the dues of the society from the petitioners on the strength of the fresh certificates obtained on 5th October 1977 (except one which is dated 3rd October 1977) under Section 103 of the Act. Before the society went into liquidation, it appears that awards were obtained against the petitioners between July and September 1961 and certificates of recovery were obtained thereafter between December 1961 and March 1962 under Section 103 of the Act. The contention on behalf of the petitioners, therefore, is that since recovery proceedings were not initiated for twelve years after the issuance of the certificates between December 1961 and March 1962, the remedy became barred by limitation and issuance of fresh certificates in favour of the liquidator in October 1977 could not give a fresh lease of life to a remedy which had already become time barred.

2. Section 103 of the Act which is relevant for our purpose reads as under:

103. Every order passed by the Registrar or a person authorised by him under Section 9, or by the Registrar, his nominee or Board of nominee under Section 100 or 101, every order passed in appeal under Section 102, every order passed by a liquidator under Section 110, every order passed by the State Government in appeal against orders passed under Section 110, and every order passed in reversion under Section 155, shall, if not carried out,:

(a) on a certificate signed by the Registrar or a Liquidator, be deemed to be a decree of a Civil Court, as defined in Clause (2) of Section 2 of the Code of Civil Procedure, 1908 and shall be executed in the same manner as a decree of such Court, or

(b) be executed according to (he provisions of the Land Revenue Code and the rules thereunder 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 any 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 dale is fixed, from the date of the order.

The petitioners had borrowed loans from the second respondent Bank. To recover the said loan amount with interest, the Bank had filed legal proceedings against the petitioners before the Registrar's nominee and awards were made under Section 101 of the Act against the petitioners between July and September 1961. For executing these awards, certificates were obtained under Section 103 between December 1961 and March 1962. The mode of execution has been set out in Clauses (a) and (b) of Section 103 of the Act. It is only on the basis of the certificate issued under Section 103 of the Act that execution can lie either in the Civil Court or before the Collector under the Land Revenue Code. If the party in whose favour the certificate is issued prefers to execute the same through the Civil Court. the certificate has to be deemed to be a decree under Section 2(2) of the Code of Civil Procedure and executed in the same manner as a decree of the Civil Court. For execution of any decree of the Civil Court, the period of limitation prescribed by Article 136 in the Schedule to the Limitation Act, 1963, is twelve years from the date the decree becomes enforceable or where the decree directs any payment of money to be made at a certain date or at recurring periods from the date default in making the payment in respect of which execution is sought takes place. Since the certificates were issued between December 1961 and March 1962, the recovery proceedings ought to have commenced between December 1973 and March 1974 in the Civil Court. Admittedly the recovery proceedings did not commence till 1977 and hence there can be no doubt that the execution proceedings if taken out in Civil Court would be barred by Article 136 of the Limitation Act.

3. The recovery proceedings initiated in the office of the Collector would also be barred if not taken out 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 not the case of the second respondent that any date was fixed by the orders issued between July and December 1961. Since the execution proceedings were sought to be taken out by an application made to the Collector under the proviso to Clause (b) of Section 103 of the Act the said proceedings ought to have been taken out within twelve years from the date of the order. Since the proceedings were taken out long after the expiry of the period of twelve years they were clearly barred by limitation.

4. In either case, therefore, the recovery proceedings became barred by limitation on the expiry of twelve years from the date of the issuance of the certificate under Section 103 of the Act. It was, however, stated that the period of limitation would run against the liquidator after the fresh certificates were obtained in October 1977. Now before these fresh certificates were obtained, the remedy had become barred by limitation. What had become barred by limitation could not be revived by subsequently obtaining fresh certificates for the execution of the very same awards.

5. In the first place the Act does not contemplate the granting of more than one certificate but assuming for the sake of argument that for some reason or the other a fresh certificate becomes necessary, the period of limitation would run on the issuance of the first certificate after the making of an award. Once the period of limitation has run out the issuance of a fresh certificate cannot enthuse life and revive a remedy which is dead. If that is permitted, it would defeat the very object of prescribing a period of limitation. I am, therefore, of the opinion that the fresh certificates issued in October 1977 cannot revive the remedy which had extinguished by efflux of time.

6. For the above reasons the execution proceedings commenced on the strength of the fresh certificates issued in October, 1977, Annexures D1 to D23, are quashed and set aside. The respondents are debarred from proceeding with the execution proceedings commenced on the basis of those recovery certificates. The rule is made absolute accordingly with no order as to costs.


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