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Muhammad AmIn Sahib (Died) Vs. Tiruvannamalai Co-operative Society by Its Secretary, Sri M.S. Seshachala Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Trusts and Societies
CourtChennai
Decided On
Reported in(1949)2MLJ682
AppellantMuhammad AmIn Sahib (Died)
RespondentTiruvannamalai Co-operative Society by Its Secretary, Sri M.S. Seshachala Aiyar and ors.
Cases ReferredAppavoo Nainar v. Lakshmana Reddi
Excerpt:
- - arunachalam raised a very interesting point of law on which the only reported case is that of karuppasami v. section 39 says that the court which passed the decree may on the application of the decree-holder send it for execution to another court for any of the reasons mentioned in clauses (a) to (d). clearly, clauses (a), (b) and (c) do not apply......of the decree from the court which passed the decree to the registrar. under section 38 of the civil procedure code, a decree may be executed either by the court which passed it, or by the court to which it is sent for execution. so he argues that if the decree has not been sent for execution to the registrar, the registrar is not competent to execute it. the short answer to this argument is that the execution to which section 38 refers is an execution under the code of civil procedure. the proceedings taken by the registrar under section 57-a of the act may be of the same nature and may have the same result as but they are not execution proceedings in a civil court governed by the code of civil procedure. section 39 says that the court which passed the decree may on the application.....
Judgment:

P.V. Rajamannar, C.J.

1. S.A. No. 1345 of 1945. In this second appeal Mr. Arunachalam raised a very interesting point of law on which the only reported case is that of Karuppasami v. Krishnasami : (1949)1MLJ199 , a decision of Satyanarayana Rao, J.

2. There was a mortgage decree passed by the District Munsif of Tiruvannamalai in favour of the Co-operative Society. The Society, instead of proceeding with the execution of the decree in the District Munsif's Court, applied to the Registrar to recover the money payable under that decree under Section 57-A of the Madras Co-operative Societies Act, VI of 1932. Under that section, the Registrar or any person subordinate to him empowered by the Registrar in this behalf may, subject to such rules as may be prescribed by the local Government, recover the amount due under a decree or order of a Civil Court by the attachment and sale or by the sale without attachment of property of the person against whom such decree or order has been obtained or passed. Under Section 57-B, the Registrar or any person empowered by him in that behalf is deemed to be Civil Court for the purposes of Article 182 of the First Schedule to the Indian Limitation Act, IX of 1908. Rule 22 of the rules framed under the Act sets forth the procedure to be followed by the Registrar when an application is made under Section 57-A. Form No. 1 of Schedule III is the form prescribed for such application. On receipt of the application, the Registrar shall verify the correctness and genuineness of the particulars set forth in the application with the records, if any, in his office and prepare a demand notice in writing in duplicate in the form prescribed by the Registrar, setting forth the name of the defaulter, the amount due and forward it to a sale officer.

3. The contention of Mr. Arunachalam is that the Registrar cannot take proceedings under Section 57-A of the Act without a formal transfer of the decree from the Court which passed the decree to the Registrar. Under Section 38 of the Civil Procedure Code, a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. So he argues that if the decree has not been sent for execution to the Registrar, the Registrar is not competent to execute it. The short answer to this argument is that the execution to which Section 38 refers is an execution under the Code of Civil Procedure. The proceedings taken by the Registrar under Section 57-A of the Act may be of the same nature and may have the same result as but they are not execution proceedings in a Civil Court governed by the Code of Civil Procedure. Section 39 says that the Court which passed the decree may on the application of the decree-holder send it for execution to another Court for any of the reasons mentioned in Clauses (a) to (d). Clearly, Clauses (a), (b) and (c) do not apply. Clause (d) is in the following terms:

If the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

We think that such Court must be a Court governed by the Code of Civil Procedure and not a body which might have functions almost exactly similar to those of the Civil Court but is not governed by the Code of Civil Procedure. It may be that the Registrar acting under Section 57-A can be deemed to be a Civil Court for some purposes. Section 57-B expressly says that the Registrar will be a Civil Court for purposes of Article 182 of the Limitation Act. For purposes of court-fee, a learned Judge of this Court has held that the Registrar may be deemed to be a Civil Court. (Subramania v. Official Liquidator : (1949)1MLJ107 But there is no authority for the position that the Registrar can be treated as a Court within the meaning of Section 39 of the Code of Civil Procedure.

4. We have therefore two things. One is that there is nothing in the Co-operative Societies Act which compels the decree-holder to get a transfer of the decree to the Registrar, and the other, that there is nothing in the Code of Civil Procedure which empowers the Court which passed the decree to transfer it on application to the Registrar. We therefore hold that the contention of the appellant cannot prevail. We find that this is the view taken by Satyanarayana Rao, J., in Karuppasami v. Krishnasami : (1949)1MLJ199 .

5. Mr. Arunachalam drew our attention to several anomalies which might arise if there is no provision for a formal transfer of the decree from the file of the Court which passed the decree to the file of the Registrar with all connected records, particularly relating to execution, if any, which had taken place in the Civil Court. There is nothing in the Act or in the rules which prevents the Civil Court from proceeding to execute the decree passed by it, because an application has been made by the decree-holder to the Registrar under Section 57-A of the Act. This will lead to concurrent execution both by the Civil Court and by the Registrar which could not have been intended. Likewise, there is nothing in the Act or in the rules to enable the Registrar to obtain the records relating to the decree and to the execution proceedings, if any, in the Civil Court. In the absence of a provision enabling the Registrar to obtain such records, there is scope for grave injustice sometimes happening either due to mistake or due to inadvertence. If the application to the Registrar under Section 57-A is considered to be virtually an execution application, it is but proper that the decree and all relevant records should be available to the Registrar. It is most desirable that provision should be made in the Rules or in the Act to avoid the anomalies pointed out above. These anomalies however cannot compel us to hold that under the Act or under the Code of Civil Procedure there is anything which compels a decree-holder to apply for and obtain a transfer of the decree from the Court which passed it to the Registrar before further proceedings are taken under Section 57-A of the Act.

6. In the result the second appeal is dismissed. There will be no order as to costs.

7. A.A.A.O. No. 28 of 1946.--We agree with the lower Court that the application for delivery of possession was barred by limitation having been filed more than three years after the date of confirmation of sale. It is admitted that the article applicable is Article 180 of Schedule I to the Limitation Act. This result is sought to be got over by the contention that E.A. No. 893 of 1942, a prior application for delivery of possession was not judicially disposed of on 30th October, 1943, but it was struck off for statistical purposes and therefore it could be revived by the present application. Now that E.A. No. 893 of 1942 was dismissed because the petitioners were not present, that is to say, it was dismissed on account of the default of the auction purchaser. We agree with the lower Court that E.A. No. 893 of 1942 was not closed for statistical purposes or for other reasons as was done in Appavoo Nainar v. Lakshmana Reddi : AIR1933Mad745 on which the counsel for the appellant relied and therefore no question of reviving that application would arise.

8. The learned Counsel for the appellant also relied upon the fact that appeals were pending in which the validity of the sale was being challenged. But it is not pretended that the application for delivery of possession could not proceed because of a stay by any competent Court and that therefore it was struck off on 30th October, 1943.

9. The Civil Miscellaneous Second Appeal is dismissed with costs.


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