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MafizuddIn Ahmad Vs. Narayanganj Central Co-operative Sale and Supply Society, Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal267
AppellantMafizuddIn Ahmad
RespondentNarayanganj Central Co-operative Sale and Supply Society, Ltd. and anr.
Cases Referred and P. Dasaratha Rao v. C. Subba Row
Excerpt:
- .....the proceedings. an answer to this contention has been sought to be, given by a reference to sub-rule (6), rule 22 which purports to give finality to an award unless called in question by way of an appeal within a given time. this sub-rule in our opinion is not meant to take away the jurisdiction of an executing court to inquire into the competency of the award on the ground of jurisdiction in the same way as of a decree which it has to execute and within such narrow limits as have been prescribed by the full bench decision of this court in the case of gora chand haidar v. prafulla kumar roy : air1925cal907 . but the real answer to the contention, in our opinion, is that the terms of sub-rule (1), rule 22 do not confine the dispute to such as may be referable to membership only. the.....
Judgment:

1. Two persons, Mafizuddin Ahmed and Jowadali Khondar, executed a security bond in favour of the Narayangunj Central Co-operative Sale and Supply Society Ltd. in connexion with their appointment as brokers for supplying jute to the society. They having incurred certain liabilities in connexion with their work as such brokers, the society referred the dispute to the Registrar of Co-operative Societies of the Dacca Division who appointed an arbitrator in accordance with the provisions of Rule 22 framed under Section 43, Co-operative Societies Act (2 of 1922). The arbitrator made an award in the shape of a preliminary decree and thereafter in the form of a final decree for sale of the secured property. The award being put into execution objections were entered by judgment-debtor 1, Mafizuddin Ahmad. These objections were overruled and on that he has appealed. Two grounds have been taken in the appeal.

2. The first ground is that the reference under Rule 22, Sub-rule (1) was ultra vires inasmuch as judgment-debtor 2, Jowadali, was never a member of the Society. This objection was not specifically mentioned in the statement of objections filed by the appellant in the Court below. It was raised before the Subordinate Judge who rejected it on two grounds: first, that the appellant was precluded from raising it because Jowadali himself had not contested the case; and second, that the objection not having been specifically taken in the statement of objections filed by the appellant was not entertainable, because the society had no opportunity of meeting it by adducing evidence, which was absolutely necessary in order to decide on the objection inasmuch as it involved a disputed question of fact. The first of these grounds is not tenable, but the second is a very reasonable one. We are of opinion that the decision of the Subordinate Judge on this point ought not to be disturbed; the more so, because of certain materials to which our attention has been drawn and on which we are satisfied that the objection has no substance.

3. The second contention urged is that the reference was ultra vires inasmuch as the dispute was such as it was not between the society on the one hand and the two members on the other qua members, but only in their capacity as brokers, in other words, that the dispute, not being of a character referable to their membership but relating to transactions which they had entered into as brokers, was not one coming within the purview of the rule which enables the society to make a reference which may give jurisdiction to the Registrar to found the proceedings. An answer to this contention has been sought to be, given by a reference to Sub-rule (6), Rule 22 which purports to give finality to an award unless called in question by way of an appeal within a given time. This sub-rule in our opinion is not meant to take away the jurisdiction of an executing Court to inquire into the competency of the award on the ground of jurisdiction in the same way as of a decree which it has to execute and within such narrow limits as have been prescribed by the Full Bench decision of this Court in the case of Gora Chand Haidar v. Prafulla Kumar Roy : AIR1925Cal907 . But the real answer to the contention, in our opinion, is that the terms of Sub-rule (1), Rule 22 do not confine the dispute to such as may be referable to membership only. The view we take is supported by such decisions as Zamindars Bank, Sherpur Kalan v. Suba AIR 1924 Lah 418 and P. Dasaratha Rao v. C. Subba Row AIR 1923 Mad 481. The appeal in our judgment cannot succeed. It is accordingly dismissed. We make no order as to costs.


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