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Midnapore People's Urban Co-operative Credit Society, Ltd. Vs. Bhupendra Nath Basu and Ors. (04.01.1935 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal418
AppellantMidnapore People's Urban Co-operative Credit Society, Ltd.
RespondentBhupendra Nath Basu and Ors.
Excerpt:
- .....small causes at midnapore. there was no contest in the suit, and a decree was passed ex parte. the decree-holder society, in the first execution case, failed to realize any part of the decretal amount by attachment of the salary of the judgment-debtor; when the second execution case was started, the judgment-debtor made two payments, and filed a petition in court agreeing to satisfy the debt due to the decree-holder society, by instalments of rs. 10 a month. it appears that in terms of this agreement dated 26th july 1930, the amount of rs. 150 was realized by the decree holder.2. when the last execution, which has given rise to this reference, was started for the realization of the decretal amount, that remained unpaid, the judgment debtor having failed to comply with the terms of the.....
Judgment:
ORDER

1. This is a reference under Order 46, Rule 1, Civil P.C., made by the Subordinate Judge, Third Court, Midnapore, inviting the decision of this Court on two questions of law, on the facts and circumstances stated in the letter of reference. The plaintiff decree-holder, the Midnapore People's Urban Cooperative. Credit Society, Ltd., obtained a decree for recovery of money lent on a bond by the Society to the defendant, in Suit No. 43 of 1929 in the Court of Small Causes at Midnapore. There was no contest in the suit, and a decree was passed ex parte. The decree-holder Society, in the first execution case, failed to realize any part of the decretal amount by attachment of the salary of the judgment-debtor; when the second execution case was started, the judgment-debtor made two payments, and filed a petition in Court agreeing to satisfy the debt due to the decree-holder Society, by instalments of Rs. 10 a month. It appears that in terms of this agreement dated 26th July 1930, the amount of Rs. 150 was realized by the decree holder.

2. When the last execution, which has given rise to this reference, was started for the realization of the decretal amount, that remained unpaid, the judgment debtor having failed to comply with the terms of the agreement referred to above, objection was raised by the judgment-debtor to the execution, on the ground that the decree sought to be executed was void and without jurisdiction. The case of the judgment-debtor was that the civil Court had no jurisdiction to pass a decree in view of the provisions contained in Section 43, Co-operative Societies Act (2 of 1912) and Rule 22 of the Rules framed thereunder, by the Government of Bengal. It was urged on behalf of the judgment-debtor that a claim on a bond by the Society against a member of the Society was a dispute as contemplated by the above provisions of the law, and as such it had to be referred to the Registrar of the Society for decision, the jurisdiction of the civil Court in cases of the present description having been excluded by the operation of Rule 22 mentioned above; the sub-R. (1), Rule 22 making a reference to the Registrar obligatory. It was on the other hand contended on behalf of the Society that a claim for money based upon a bond executed by a member in favour of a Co-operative Credit Society, was not a dispute within the meaning of Rule 22, and that the jurisdiction of the civil Court was not therefore taken away by the statute. It was further contended that it was not open to the judgment-debtor to raise objection to the manner of realization of the money due from him, after he had a filed a solenama on 26th July 1932, which was an agreement governing the rights of parties in the matter of satisfaction of the decretal debt. The learned Subordinate Judge has formulated the two questions of law referred by him to this Court in this way:

(1) Whether the jurisdiction of the civil Court is barred in respect of suit upon bonds brought by Co-operative Credit Societies against their members by Rule 22 of the Rules framed by the Local Government under Section 43, Co-operative Societies Act? Whether such suits are barred in cases where the claim of the Society was not disputed by the member before the suit was filed? (2) Whether a solenama filed by a judgment-debtor in an execution case brought to execute a void decree, agreed to by the decree-holder and recorded by the Court, can be enforced by execution

3. In view of the facts and circumstances of the case before us, we propose to deal with the second of the two questions mentioned above first. There can be no doubt that the judgment-debtor admitted existence of the debt, evidenced by the bond on the footing of which a decree was passed against him. There was no dispute as to the same; there was no contest, and an ex parte decree was suffered to be passed; two payments were made towards satisfaction of the decree, and it was finally and conclusively settled as between the parties concerned by an agreement that the entire debt was to be satisfied by payments by instalments; and that agreement was partly performed, as it is apparent from the petition filed in Court by the decree-holder society on 3rd August 1933. According to the terms of the agreement any failure of payment by instalments was to be followed by execution of the decree for realization of the amount due.

4. On the materials on the record, we are of opinion that the agreement for satisfaction of the debt, filed in Court on 26th July 1930, which was partly performed, was a valid agreement between the parties, and the Subordinate Judge, is in our judgment right in his observation that even if nothing was recoverable under the decree passed by the Court in Suit No. 43 of 1929, on the footing that it was not a valid decree under the law, decree having been passed by a Court which was not competent to pass the same, the amount sought to be realized in the present execution was realizable on the terms of the solenama, which had the force of a valid and complete contract between the parties, and enforceable in execution as such. The second question referred to us is therefore answered in the manner following:

5. On the facts and in the circumstances of the case before us, the solenama filed by the judgment-debtor in the execution case, started for the purpose of executing a decree which may be an invalid decree, agreed to by the decree-holder and recorded by the Court, can be enforced in execution, in terms of the agreement between the parties. It is not necessary to give any decision on the first question referred to this Court, regard being had to our decision on the second question, as mentioned above; and we do not express any opinion on the question whether the decree passed in Suit No. 43 of 1929 is void or not, on the ground suggested in the first question referred to us for decision, and which it is wholly unnecessary to decide in the present case.


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