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The Villupuram Urban Co-operative Bank by Its Secretary Mr. Kuppuswamy Mudali Vs. Balasubramania Mudali - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1938Mad809; (1938)2MLJ186
AppellantThe Villupuram Urban Co-operative Bank by Its Secretary Mr. Kuppuswamy Mudali
RespondentBalasubramania Mudali
Cases ReferredKoyal v. Bhondlal
Excerpt:
- - 281-6-9 to the society with interest and costs and upon failure to do so the property was ordered to be brought to sale. clearly there is nothing in the decree which shows that the minor was not served;.....can refuse to execute. the question that has to be decided is whether there is anything in the award passed by the arbitrator in this case that shows that it is illegal. clearly there is nothing in the decree which shows that the minor was not served; and the executing court therefore had to presume that the decree was properly passed against the minor. whether a joint family can be a member of the co-operative society is a question that may be open to discussion, although i think with due respect that the learned judges who decided laxman v. dhamori co-operative society were right in holding that a corporation, and therefore a joint family, could be a member of the co-operative society. that in certain circumstances a family can be a member of the society is also recognised in an.....
Judgment:

Horwill, J.

1. In a dispute between the Secretary of the Villupuram Urban Co-operative Bank and member No. 719 of that Company an award was passed by the Arbitrator under Rule 14 of the Rules framed under Section 43 of the Co-operative Societies Act, in which one Vaithilinga Mudaliar and two undivided minors of his family were ordered to pay Rs. 281-6-9 to the Society with interest and costs and upon failure to do so the property was ordered to be brought to sale. This award was sent to the District Munsiff of Villupuram for execution ; and he held after enquiry that the third defendant had not been served in the Proceedings before the Arbitrator; and he therefore refused to execute the decree against the share of the third defendant in the family property. In appeal the Additional Subordinate Judge of Cuddalore confirmed this decision, not only on the ground that the third defendant was not served; but also on the ground that the third defendant, because he was a minor, could not be a member of the Society and because the rules relating to arbitration provide for the decision of disputes to which members only were parties.

2. It has been made clear by this Court in a series of decisions - and the decision in appeal against Appellate Order No. 146 of 1933 is one of the latest - that it is not open to an executing Court to sit in judgment over the Court which passed the decree which has to be executed. It cannot, except in certain limited recognised cases, conduct enquiries to ascertain whether the decree was properly passed. If on the face of the record it is clear that some illegality has been committed, the executing Court can refuse to execute. The question that has to be decided is whether there is anything in the award passed by the Arbitrator in this case that shows that it is illegal. Clearly there is nothing in the decree which shows that the minor was not served; and the executing Court therefore had to presume that the decree was properly passed against the minor. Whether a joint family can be a member of the Co-operative Society is a question that may be open to discussion, although I think with due respect that the learned Judges who decided Laxman v. Dhamori Co-operative Society were right in holding that a corporation, and therefore a joint family, could be a member of the Co-operative Society. That in certain circumstances a family can be a member of the Society is also recognised in an earlier case of the same Court, Koyal v. Bhondlal which has been referred to by the learned Advocate for the third defendant in this Court. It is argued that there is nothing in the decree which shows that the whole family was a member of the Society; but the question is not whether the decree shows that the whole family was a member of the Society; but whether there is anything in the decree which shows that the whole family was not a member. On the contrary, the award sets out the names of all the members of the family; and therefore it would seem that all the members of the family were liable, because the family and not only the manager was a member of the Society. I am therefore of opinion that there is nothing in the award which indicates that it is incorrect and ought not to be executed. If in fact the third defendant was not liable, either because he was not served or otherwise properly represented before the Arbitrator, he is not without a remedy; but the executing Court must take the decree as it stands and allow the Society to execute. If a minor is not properly represented in a suit, he is not a party to the suit, although his name may appear in the records and in the decree. That being so, the executing Court is given no jurisdiction under Section 47, Civil Procedure Code.

3. The appeal is therefore allowed with costs throughout. Leave refused.


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