Skip to content


Mugi Subbayya Vs. Ravulacheruvu Thippa Reddi and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1939Mad967; (1939)2MLJ604
AppellantMugi Subbayya
RespondentRavulacheruvu Thippa Reddi and anr.
Cases ReferredKamaraja Pandiya Naictor v. Secretary of State
Excerpt:
.....jurisdiction of the civil court is ousted. and it is well established that the exclusion of the civil courts' jurisdiction by the creation of a special machinery before a special tribunal need not be express but may be by necessary implication. 392 .all these rulings follow well-known english cases, the validity of which has never been doubted. , is definitely a machinery of a judicial nature functioning under rules precisely similar to those by which the courts are bound under order 21 of the civil procedure code and, apart from the fact that there is some curtailment of the rights of appeal presumably with a view to economy and despatch of business, there is nothing in the procedure before registrar which can be regarded as less judicial in its character than the procedure before..........judge has reversed the trial court on both these grounds, holding that the jurisdiction of civil courts cannot be taken away unless it is expressly excluded by the statute in question and that section 48 has no application because the bringing of properties to sale in execution of a decree or an award is not part of the winding up of the society.2. it seems to me that the decision of the learned district judge is demonstrably wrong on both these grounds. in the first place the authorities which the learned district judge quotes for the view that the jurisdiction of the civil court is not ousted unless it is ousted by the express terms of the statute propound precisely the contrary proposition and the fact that jurisdiction may be ousted by necessary implication seems to follow.....
Judgment:

Wadsworth, J.

1. This appeal arises out of a suit to set aside a sale held by the Deputy Registrar of Co-operative Societies as liquidator of a Co-operative Credit Society. The grounds upon which the sale was sought to be set aside are substantially the failure of the selling officer to follow strictly the procedure laid down in the rules under the Co-operative Societies Act. The suit was dismissed by the trial Court on the grounds that the Civil Court has no jurisdiction to entertain such a suit for a remedy in respect of which a special machinery has been provided by the Act; and also because by reason of Section 48 of the Madras Co-operative Societies Act whereunder the suit would not lie without the leave of the Registrar. The learned District Judge has reversed the trial Court on both these grounds, holding that the jurisdiction of Civil Courts cannot be taken away unless it is expressly excluded by the Statute in question and that Section 48 has no application because the bringing of properties to sale in execution of a decree or an award is not part of the winding up of the Society.

2. It seems to me that the decision of the learned District Judge is demonstrably wrong on both these grounds. In the first place the authorities which the learned District Judge quotes for the view that the jurisdiction of the Civil Court is not ousted unless it is ousted by the express terms of the statute propound precisely the contrary proposition and the fact that jurisdiction may be ousted by necessary implication seems to follow from the words of Section 9 of the Civil Procedure Code, which are to the effect that the Courts shall have jurisdiction to try all suits of a civil nature except suits of which their cognisance is either expressly or impliedly barred. All the cases to which I have been referred recognise that the jurisdiction of the Civil Courts may be ousted by necessary implication when a special statutory machinery has been set up and that the ouster need not be express. As to the reason for not applying the bar under Section 48, the learned District Judge has overlooked the fact that though this suit has been filed nominally against the liquidator, it is in fact against the liquidator as representing the Society and such being the case, the second portion of Section 48 will apply and the suit will not lie without the leave of the Registrar.

3. This is sufficient to, dispose of the appeal, but, as the more important question of the jurisdiction of the Civil Courts has been argued at length, it is desirable that I should say a few words upon it. The facts are that the plaintiff borrowed money from the Society and mortgaged properties as security for the loan. When the Society was in liquidation, the liquidator having got a' decree against the plaintiff, in execution of that decree through the agency of the Co-operative Department sold the properties to the present appellant, the second defendant in the suit, on 10th September, 1936. Under the rules framed under the Madras Co-operative Societies Act a special procedure is prescribed whereby a person whose property has been sold can, by taking action within thirty days of the sale, establish before the Registrar his right to have the sale set aside on the ground of irregularity, mistake or fraud by a procedure almost identical with that prescribed under O. 21 of the Civil Procedure Code. The plaintiff took no such action but on 12th March, 1937, that is to say, some five months after his remedy under the statutory rules was barred, he filed the present suit. The plaint is not drafted as if the plaintiff were merely seeking the common law remedy against a trespass by an unauthorised person upon property to which he was entitled. It is drafted just as if the plaintiff had a right by statute to contest in the Civil Courts the regularity of the sale on the ground that the statutory formalities had not been complied with; that is to say, the plaintiff seeks to call in aid the Civil Courts to procure a remedy which would have been hopelessly barred if sought in the tribunal specially designated by the statute for that purpose.

4. The general principle is well established and has been repeatedly laid down by the Courts that where by statute powers have been given to any person for a public purpose, by which powers an individual may receive injury, if the mode of redressing the injury is pointed out by the statute, the ordinary jurisdiction of the Civil Court is ousted. Another way of putting the same proposition is that where the statute creates a new offence or gives a new right and prescribes a particular penalty or special remedy, no other remedy can, in the absence of a contrary intention, be resorted to. And it is well established that the exclusion of the Civil Courts' jurisdiction by the creation of a special machinery before a special tribunal need not be express but may be by necessary implication. The cases to' which I have been referred are Ramachandra v. Secretary of State I.L.R.(1888)12 Mad. 105, Iszvarananda Barathiswami v. Commissioners, Hindu Religious Endowments Boards : AIR1931Mad574 , Bhaishankar v. Municipal Corporation of Bombay I.L.R.(1907) 31 Bom. 604, Ramayyar v. Vedhachala I.L.R.(1890) 27 Mad. 483 , Zamindar of Ettiyapuram v. Sankarappa Reddiar I.L.R.(1903) 27 Mad. 483 , Municipal Board, Bareilly v. Abdul Aziz : AIR1934All795 , Mohideen Pichai v. Tinnevelly Mills Co. : AIR1928Mad571 , Nataraja Mudaliarw. Municipal Council, Mayavaram : (1911)21MLJ878 and Dewa Singh v. Fasal Dad A.I.R. 1928 Lah. 562, and the Full Bench decision of the Rangoon High Court under the Burma Co-operative Societies Act reported in Dey v. Bengalee Y.M.C.C. Society A.I.R. 1938 Rang. 392 . All these rulings follow well-known English cases, the validity of which has never been doubted. On the other hand Mr. Raghava Rao for the respondent quoting Varadachariar, J., in Kamaraja Pandiya Naictor v. Secretary of State for India in Council (1934) 69 M.L.J. 695 , relies on the opposite proposition that where a person's liberty ' of property is interfered with under colour of statutory powers, he has a cause of action which the Civil Courts are bound to entertain unless a bar to such entertainment has been enacted expressly or at least by necessary implication. It is argued that there is no express exclusion of the Civil Courts' jurisdiction to decide on the validity of a sale by a Co-operative Registrar and that the absence from the rules under the Co-operative Societies Act of a provision similar to that found in Order 21, Rule 92(3) is an indication that no such ouster of the Civil Courts jurisdiction should be implied. It seems to me that the last argument has very little force, for we are not concerned here with power of the Courts to question the decision of the Registrar on a dispute regarding the validity of a sale. We are concerned rather with the alleged right of the debtor to ignore the machinery provided by the Act and seek to question the sale in the Civil Courts by alleging statutory irregularities at a time when the remedy provided by the Act would be time-barred. In the case just referred to Varadachariar, J., does not question the validity of the proposition that where a quasi judicial machinery is set up by the statute for remedying injuries alleged to have been caused by the exercise of powers conferred under the statute, ordinarily it will be implied that the Civil Courts' jurisdiction to give the same remedy will be ousted. What the learned Judge does in the particular case is to distinguish between an executive machinery and a quasi judicial machinery and to point out that the ouster of the Civil Courts' jurisdiction will not be inferred merely because of the setting up of a right of appeal to a purely executive authority. Under Rule 22 framed under the Co-operative Societies Act the machinery which is prescribed for setting aside a sale on grounds of irregularity, fraud, etc., is definitely a machinery of a judicial nature functioning under rules precisely similar to those by which the Courts are bound under Order 21 of the Civil Procedure Code and, apart from the fact that there is some curtailment of the rights of appeal presumably with a view to economy and despatch of business, there is nothing in the procedure before Registrar which can be regarded as less judicial in its character than the procedure before the District Munsif in contesting sales in execution. Quite clearly this is a case in which the plaintiff has, with his eyes open, brought himself within the ambit of the special statute in order to enjoy the special facilities thereby created for borrowing money and has put himself and his property within the reach of the machinery created by that statute for the enforcement of the repayment of loans. If he has a grievance arising out of the way in which that machinery has worked, the remedy is the one indicated by the rules under the Statute. That remedy he has not chosen to adopt and he cannot, when his legal remedy is barred, try to achieve the same result by filing a suit in the Courts requiring the Courts to exercise a jurisdiction which the statute itself does not contemplate and which is inconsistent with the scheme of the Act.

5. In the result therefore I allow the appeal, and dismiss the suit with costs throughout. The costs in appeal will be payable by the first respondent-plaintiff. One set only in appeal.

6. Leave refused.


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