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Krishnaswami Goundar Vs. A-2190 Jambuthurai Kottai Co-operative Society by Its President and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)2MLJ439
AppellantKrishnaswami Goundar
RespondentA-2190 Jambuthurai Kottai Co-operative Society by Its President and ors.
Cases ReferredRamabakthula Ramayya v. Chittoor District Co
Excerpt:
- .....of the award decree obtained against the 3rd defendant, and that therefore any subsequent sale in favour of the plaintiff, be it a court sale, will not divest the title of the first defendant and as between the competing titles, the title of the society ought to be preferred it being earlier in point of time. it is a valid sale, by which the property had already been sold and therefore the plaintiff derived no title. the learned district munsif of madurai who tried the suit decreed in favour of the plaintiff holding that the court sale ought to be preferred to that for the sale in execution of the award obtained under the co-operative societies act. he also held that the bar under section 100 of the co-operative societies act, 1961, could not oust jurisdiction of the civil.....
Judgment:

S. Mohan, J.

1. O.S. No. 579 of 1971 was preferred before the file of District Munsif, Madurai, for declaration and mandatory injunction and the plaintiff's allegations are briefly as follows:

2. The suit properties originally belonged to F. Malaya Gounder, the 3rd defendant. The second defendant had obtained a decree against the 3rd defendant in O.S. No. 359 of 1968 on the file of the District Munsif Court, Madurai. The suit properties were attached in execution of his decree in E.P. No. 85 of 1969 on 8th March, 1969 and were brought to sale on 23rd February, 1970. The plaintiff purchased them for Rs. 1,300 subject to the encumbrance and the sale was confirmed on 30th April, 1970. E.A. No. 564 of 1970 was filed for delivery of the properties and the same was effected on 6th June, 1970 and the delivery was also recorded as on 8th June, 1970. That ever since the date he had been in possession and enjoyment of the properties is seen from the patta and cist receipts. While that being so, the first defendant obtained an award decree in A.R.C. No. 141 of 1968 before the Deputy Registrar of Co-operative Societies and in execution of that award he came to purchase the property on 24th November, 1969 itself. When the plaintiff wanted to take delivery of the possession he was obstructed by the first defendant and his men and hence the suit.

3. The first defendant filed a written statement stating as follows. The property has been purchased by this society on 24th November, 1969 itself in execution of the award decree obtained against the 3rd defendant, and that therefore any subsequent sale in favour of the plaintiff, be it a Court sale, will not divest the title of the first defendant and as between the competing titles, the title of the society ought to be preferred it being earlier in point of time. It is a valid sale, by which the property had already been sold and therefore the plaintiff derived no title. The learned District Munsif of Madurai who tried the suit decreed in favour of the plaintiff holding that the Court sale ought to be preferred to that for the sale in execution of the award obtained under the Co-operative Societies Act. He also held that the bar under Section 100 of the Co-operative Societies Act, 1961, could not oust jurisdiction of the civil Court.

4. On appeal, in A.S. No. 332 of 1972, the learned Subordinate Judge of Madurai reversed the finding and set aside the decree. Against, this, the present second appeal has come to be preferred.

5. Mr. Balasubramaniam, learned Counsel for the appellant, contends that the finding of the lower appellate Court about the bar of jurisdiction under Section 100 is incorrect in view of the later judgments of the Supreme Court and one such, is in Sree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Gam (deed.) v. State of Andhra Pradesh : [1970]2SCR714 where their Lordships of the Supreme Court set out the grounds on which the jurisdiction of the civil Court should be excluded. The first ground mentioned is:

1. Where the statute gives a finality to the orders of the special Tribunal the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

Relying on the above principles, it is contended that the provisions of the Act have not been complied with, and therefore, the bar under Section 100 of the Co-operative Societies Act cannot be invoked as against the appellant. It is further submitted by the learned Counsel that his sale ought to be preferred since the sale by the Society, in favour of itself, is vitiated by fraud and illegality. Lastly, it is submitted that from the date of purchase, the plaintiff was alone in possession and enjoyment as seen from Exhibits A-15 to A-18 the pattas issued in his favour and Exhibit A-19 to A-22 the kist receipts.

6. Per contra, Mr. N. S. Srinivasan submits that his sale is prior in point of time namely, 24th November, 1969 while that of the plaintiff is later. There is absolutely no evidence to show that the sale is in any way vitiated by fraud or illegality. The bar under Section 100 read with Rule 69 (7) could be validly invoked in this case.

7. On a careful consideration of the above submissions, I come to the following conclusion : The sale in favour of the Co-operative Society is dated 24th November, 1969 while the sale under which the plaintiff got title is, dated 30th April, 1970. Undoubtedly therefore, the prior sale in favour of the Co-operative Society has to prevail. If the civil Court had been informed of the earlier sale there would not have been an occasion for the Court-sale at all, because, in view of the previous sale in favour of the Cooperative Society, the judgment-debtor, namely 3rd defendant had lost all his rights, title and interest in the suit property, and therefore, the Court sale could not convey any right in favour of the plaintiff. So, on merits, there is no difficulty in concluding that the first sale has to prevail, irrespective of the fact whether the civil Court has jurisdiction or not.

8. Inasmuch as the point relating to the jurisdiction has been elaborately argued I also think it necessary to deal with the same. The reliance placed in Sree Raja Kandregula Srinivasa Jogannadhorao Panlulu Bahadur Guru v. State of Andhra Pradesh : [1970]2SCR714 by the learned Counsel for the appellant is misconceived. This is not a case in which there is any non-compliance with provisions of rule nor again is this the case where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In fact, the first half of the provision extracted above will clearly govern this case. It is stated there:

Where the statute gives a finality to the orders of the special Tribunal the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit....

In this connection, I find the reliance placed on Section 100 read with Rule 69 (7) by the learned Counsel for the respondent is well-founded. Section 100 states as follows:

No order of award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any Court.

Rule 69 (7) is to the following effect:

All orders made under the rule shall subject only to the provisions of Section 97 be final and shall not be liable to be questioned in any suit or other legal proceeding.

Apart from there being a finality, there is an ouster of the jurisdiction of the civil Court. In a case reported in Kovvidi Satyanarayana v. Motu Industries (P.) Ltd. (1963)1 A.W.R. 323 the provisions of the previous Act came up for interpretation. Section 48 of the old Act corresponded to the present Section 100 while Rule 22 was similar to Rule 69. In such a case, after referring to various decisions regarding exclusion of the jurisdiction of the civil Court it was held as follows:

It is not open to the plaintiff to challenge the correctness of the award passed by the Deputy Registrar under Section 51 of the Madras Co-operative Societies Act, or the sale held pursuant to the said award. The Act has, under Section 57 empowered the Registrar and the State Government to correct the decisions embodied in awards under Section 51. Section 51 (6) expressly bars the jurisdiction of civil and revenue Courts to call in question the decision under Section 51. Likewise, Rule 22 of the rules made under the Act provides the procedure to be followed in execution of an award passed under Section 51, and also for setting aside the sale on the ground of material irregularity or fraud. The jurisdiction of the civil Courts to set aside the sale is also barred. Therefore, the suit for declaration that the sale is void and not binding on the plaintiff and other creditors is barred by the provisions of the Go-operative Societies Act.

It may be noted that the learned Judge who decided the case relied on the decision of this Court in Baggavampu Venkata Subbiah V. Chenchupalli Periah : AIR1952Mad266 , wherein Panchapagesa Sastri, J., following the earlier decision in Ramabakthalu Ramayya v. Chittoor District Co-operative Deputy Registrar : AIR1945Mad370 , held:

that a sale in execution of awards of Co-operative Societies cannot be attacked by a suit in a civil Court either on the ground of fraud or irregularity in the conduct of the sale or even illegality, and the civil Court has no jurisdiction to go into such matters.

I find the Court below has relied upon the last of the decisions, namely, Ramabakthula Ramayya v. Chittoor District Co-operative Registrar I.L.R.(1946) Mad. 330 : (1945) 58 L.W. 341 : (1945) 2 M.L.J. 12 : A.I.R. 1945 Mad. 370, which is also on point. In this view I have no hesitation in holding that the jurisdiction of the civil Court is excluded in the present case. Assuming that the civil Court has jurisdiction I find that no evidence whatsoever has been let in on behalf of the plaintiff to prove that the sale in favour of the Co-operative Society was vitiated by fraud, illegality or irregularity. On this aspect of the matter I am in entire agreement with the finding of the lower appellate Court which states in Para. 8 of its judgment : ' In the first place I may point out that there is absolutely no evidence worth the name on the side of the plaintiffs to show that the sale was vitiated by any fraud, illegality or irregularity.'

9. Further, it is contended by the learned Counsel for the appellant that the president of the first defendant Society and the third defendant are close relations, and therefore, it can easily be inferred that the sale was done in a clandestine way and fraudulent manner This is too tall a statement and I cannot accept the same. In the absence of evidence regarding fraud, illegality or irregularity it must be held that the sale in favour of the Co-operative Society is valid one.

10. For the above reasons, I hold that the second appeal is liable to be dismissed. Accordingly, the same is dismissed. There will be no order as to costs. No leave.


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