Skip to content


Kannappa Mudali and anr. Vs. Varadachariar - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1940Mad38; (1939)2MLJ596
AppellantKannappa Mudali and anr.
RespondentVaradachariar
Cases ReferredJang Bahadur v. Bank of Upper India
Excerpt:
- .....societies act has been transmitted for execution, to recognise an assignment under order 21, rule 16, civil procedure code. in a very recent case (c.m.s.a. no. 188 of 1936) i held that an assignee could apply under order 21, rule 16 for execution. but that decision was not based on any specific argument regarding the forum in which an application for assignment should be made in the first instance. the argument now put forward is that if there is any power in the assignee to execute an award under the co-operative societies act the assignment must first be recognised by the court which passed the decree, which is in effect not the civil court, but the court of the registrar of co-operative societies.2. the award in the present case was in favour of a cooperative bank and it was.....
Judgment:

Wadsworth, J.

1. This appeal raises the question of the jurisdiction of the Civil Court to which an award by a Registrar under the Madras Cooperative Societies Act has been transmitted for execution, to recognise an assignment under Order 21, Rule 16, Civil Procedure Code. In a very recent case (C.M.S.A. No. 188 of 1936) I held that an assignee could apply under Order 21, Rule 16 for execution. But that decision was not based on any specific argument regarding the forum in which an application for assignment should be made in the first instance. The argument now put forward is that if there is any power in the assignee to execute an award under the Co-operative Societies Act the assignment must first be recognised by the Court which passed the decree, which is in effect not the Civil Court, but the Court of the Registrar of Co-operative Societies.

2. The award in the present case was in favour of a cooperative bank and it was transferred to the Civil Court at the instance of the bank and execution was taken out by the bank. While the execution petition was pending, there was an assignment to the present respondent and the execution proceedings instituted by the bank were stopped and the assignee applied to the executing Court for recognition of his assignment and for execution. Notice of this application went to the judgment-debtors. There was no objection and the assignment was recognised. Further notice was issued of the sale application and again there was no objection. After the sale had been .ordered the present appellants, one of them claiming to be a transferee from the judgment-debtors of the properties to be sold, applied to the Court by way of review to cancel the order recognising the assignment in favour of the respondent. Both the Courts below have held that the recognition of the assignment was within the powers of the Court.

3. Section 51 of the Co-operative Societies Act gives the Registrar power to deal with disputes of members and persons claiming under them either inter se or with the society, or between the society and its servants touching the business of a registered society. Rule 15(7) of the rules framed under the Act prescribes three ways in which the decision or award of the Registrar in such a dispute can be enforced. One is by invoking the powers of the Registrar himself under Rule 22 to execute the award. The second is by a requisition to the Collector or his deputy to recover the amounts awarded as if they were arrears of land-revenue. The third, with which we are now concerned, is by an application to the Civil Court having jurisdiction over the subject-matter of the decision or award, which Court shall enforce the decision or award as if it were a final decree of the Court. I would point out that the power of the Civil Court is not merely to execute the decree as if the Registrar were a Court and as if the decree were merely a decree of the Registrar's Court transferred to it for execution; but it is a power to enforce the award, as if it were a final decree of the Court itself. That is to say, the executing Court is to my mind for purposes of execution put in the same position as a Court executing one of its own decrees.

4. If this view is correct, it disposes of the argument for the appellants. The appellants' contention is that the Registrar is a Court, that an award comes within the definition in the rules of a 'decree' and that since Order 21, Rule 16 authorises the recognition of an assignment of a decree only by the Court which passes the decree and not by the Court to which it is transferred for execution, the power to recognise an assignment, if it exists at all, can, be exercised only by the Registrar. Now with reference to this argument it must be observed that though the Registrar may for certain purposes be a Court, he exercises no powers other than those which have been granted to him under the Act and the rules framed under it. Neither the Act nor the rules under the Act contain any provision whereby the Registrar can permit an assignee of an award to apply to the Registrar for recognition of the assignment and for execution. I am not called upon now to decide whether the Registrar would be acting legally or not if he permitted an assignee to execute an awajd by application to the Registrar. All I would say is that there is no express provision in the rules whereby the Registrar can perform the function, which a Civil Court can perform in respect of its own decrees, of recognising an assignment. The machinery of the Act seems to contemplate the treatment of an award in different ways for different purposes. It may be enforced by a purely executive machinery such as that constituted under the Revenue Recovery Act. It may be enforced by the semi-judicial machinery constituted by the Registrar under the rules under the Act. Or it may be made material for the purely judicial machinery by its transfer for execution to a Civil Court. When once it is transferred to the Civil Court, it is transferred subject to the proviso that it shall be 1 executed as if it were a decree of that Court. It seems to me impossible to read into that provision a reservation that for purposes of assignment of the decree and for the recognition of such assignment in execution, it shall be, not the decree of that Court, but the decree of the Registrar.

5. There is very little authority on this subject. Cases under the old Co-operative Societies Act have no direct bearing, for under the old rules the award of the Registrar of Co-operative Societies could be executed only by a procedure similar to that applicable to an award of an ordinary arbitrator. It is established that under the old Act when an award was transferred to the Civil Court for execution, that Civil Court had the necessary power to treat the decree as its own decree for purposes incidental to execution including the granting of a certificate transferring the decree to any Court for execution, vide Krishnaji Shridhar v. Mahadeo Sakharam I.L.R.(1921) 46 Bom. 128. There is authority for the view that the award of an arbitrator when it has been filed in Court and has become the decree of the Court can be assigned and the assignment can be recognised by the Court in which that award is filed. Gladstone Wyllie v.Joosub Peer Mahomed : AIR1924Cal117 . It is contended for the appellants that the provision of Rule 15, Sub-rule 8 is significant and that this rule contemplates that the person to be recognised as the decree-holder by the Civil Court must always be the person in whose favour the Registrar has granted an award and cannot be his assignee, for the original holder of the award is given the power to apply to the Court for the return of the award with a certificate of non-satisfaction. It seems to me to be going too far to hold that because the person in whose favour an award has been passed may apply to the Court for its transfer back to the Registrar, the Court has necessarily no power to recognise an assignment. If the Court has recognised such an assignment and in spite thereof the original holder of the award applies for its transfer back to the Registrar, the position is one with which the Court executing the decree can deal by passing appropriate orders on the application for a certificate under Order 21, Rule 6.

6. On a consideration of the contentions of both sides it seems to me. clear that though the Registrar is a Court for certain limited purposes, when the award is transferred to the executing Court empowered to enforce it as if it were a final decree of the executing Court itself, in the absence of any explicit provision in the rules for the recognition of assignments by the Registrar, the natural inference is that the executing Court is competent to recognise the assignment. Even if it were not competent, the present case is to my mind not one in which execution should be stopped at the instance of the transferee from the judgment-debtors, for the assignment was recognised after due notice to the judgment-debtors and it was only after sale had been ordered that a stranger-purchaser comes forward to object to the exercise of a jurisdiction to which no objection was taken at the proper time. It seems to me to follow that if there was an irregularity (in my opinion, there was none) it is nothing more than an irregularity and there is no error of law apparent on the face of the record which would justify the cancellation of the recognition of the assignment in review. Nor can it be said that the executing Court acts wholly without jurisdiction - vide the decision of the Privy Council in Jang Bahadur v. Bank of Upper India, Ltd., in liquidation (1928) 55 M.L.J. 545 : L.R. 55 I.A. 227 : I.L.R. Luck. 314 .

7. The result therefore is that the appeal is dismissed with costs.

8. Leave to appeal is refused


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