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Murlidhar and anr. Vs. the Urban Co-operative Bank Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberEx. First Appeal No. 25 of 1963
Judge
Reported inAIR1972Raj227; 1971(4)WLN35
ActsCo-operative Societies Act, 1912 - Sections 43; Co-operative Societies Rules - Rule 18
AppellantMurlidhar and anr.
RespondentThe Urban Co-operative Bank Ltd. and anr.
Appellant Advocate S.K. Jindal, Adv.
Respondent Advocate J.S. Rastogi, Adv. for Respondent No. 1
DispositionAppeal allowed
Cases ReferredDwarka Prasad v. Traders Co
Excerpt:
.....award made on a second reference of the identical disputes is without jurisdiction and is a nullity. -..........both of them and smt. sua devi had filed objections which were decided by the arbitrator. smt. sua devi filed an appeal and a revision application against the award both of which were rejected. she also filed a writ petition in this court which was dismissed on 9-3-61 with observation that she should take the obiections which she had taken in the writ petition in execution proceedings.5. the present execution application was filed on 7-7-61 and smt. sua devi filed objections under section 47 c. p. c. against it.6. we have heard the learned counsel for the parties and we are of the opinion that the second award is a nullity and is inexecutable.7. in nalini mohan v. malda coop. urban bank air 1957 cal 23 it was held that a valid award made by an arbitrator on reference under section 86 of.....
Judgment:

Jagat Narayan, C.J.

1. This is an appeal by the iudgment debtors against an order of the executing court.

2. The material facts are these. Mohanlal borrowed a sum of Rs. 18,500/-from the Urban Co-ouerative Bank. Ajmer on 3rd September 1930. Chand-mal stood surety for the repavment of the loan. An award was given on 16-1-32 in favour of the Urban Co-operative Bank under rule 18 of the Rules framed under Section 43 of the Co-operative Societies Act II of 1912 (Central). It was for Rs. 20,681-14-9. It was reduced to Rs. 19.756-14 on revision. The first execution application was filed by the Bank in the civil Court under the aforesaid Rules on 26-2-32. Six of the mortgaged properties were sold for Rs. 15,968-8-9 and the amount was withdrawn by the Bank. On 14-12-39 the execution application was consigned to the record room in part satisfaction.

3. Earlier Ram Chander filed a suit on 31-8-39 for redemption of two out of the six properties which had been sold in execution of the award and one of the properties mortgaged by Mohanlal in favour of the Urban Co-operative Bank which remained unsold. This suit was decreed in favour of Ram Chander. This decree became final on 27-12-51. Ram Chander died on 9-1-47 and Mohanlal died on 13-9-49. Smt Sua Devi who filed the present appeal was the widow and legal representative of Mohanlal. She also died on 14-6-66 and Murlidhar and Loon Karan, have been brought on record ag her legal representatives. Ram Chander executed a will in favour of Smt. Sua Devi before his death on 9-1-47. beaueathing the three properties to which the civil suit related upon her.

4. The Registrar made a fresh reference on 3-10-52 and obtained another award in the same matter on 21-5-53 for the remaining amount. This was for Rs. 23,760-7-0. This award was given against Mohanlal and Chandmal. This was reallv against Smt. Sua Devi and Chandmal as the notice had been issued to both of them and Smt. Sua Devi had filed objections which were decided by the arbitrator. Smt. Sua Devi filed an appeal and a revision application against the award both of which were rejected. She also filed a writ petition in this Court which was dismissed on 9-3-61 with observation that she should take the obiections which she had taken in the writ petition in execution proceedings.

5. The present execution application was filed on 7-7-61 and Smt. Sua Devi filed objections under Section 47 C. P. C. against it.

6. We have heard the learned counsel for the parties and we are of the opinion that the second award is a nullity and is inexecutable.

7. In Nalini Mohan v. Malda Coop. Urban Bank AIR 1957 Cal 23 it was held that a valid award made by an arbitrator on reference under Section 86 of the Bengal Co-operative Societies Act operates to extinguish and merge the claims and disputes referred to arbitration and is final and binding upon the parties. On the making of the award the arbitrator is functus officio with regard to the disputes referred and has no jurisdiction to entertain a second reference and to make a second award in respect of the identical disputes. The second award made on a second reference of the identical disputes is without iurisdiction and is a nullitv.

8. In Anjuman Dehi v. Kehar Singh AIR 1936 Lah 901 the execution of an award settling the dispute between the Societv and its member was held by the executing Court as time-barred and the Societv again referred the same dispute to arbitration and obtained an award. It was held that the dispute between the Society and its member was determined bv the first award and the subsequent dispute referred by the Societv to arbitration was one which under the rules made under Section 43 could only be decided bv the executing court, for it related wholly to the discharge of the award. The proceedings of the executing court were subject to the ordinarv laws and if the society neglected to execute the award within time, its right to have the award enforced was lost, and that was an end of the dispute which left nothing to be referred to arbitration. Hence the second award was one which could not be passed within the scope of the Act and the rules made under it and a suit could lie to have it declared void.

9. On behalf of the Urban Cooperative Bank reliance was placed on the decision in Dwarka Prasad v. Traders Co-op. Bank AIR 1940 Pat 552. In that case it was held that even where a previous award has been given, if there is still a dispute as to the judgment-debtor's ability to pay. or the manner of enforcement of payment, the Registrar is competent to deal with the matter and to pass a second award in respect of the same subject-matter. We regret we are unable to subscribe to the view taken in this decision.

10. In the result, we allow the appeal and dismiss the execution application. In the circumstances of the case, we leave the parties to bear their own costs throughout.


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