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Nilmoney Maity Vs. Kumar NaraIn Jana and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.802
AppellantNilmoney Maity
RespondentKumar NaraIn Jana and ors.
Cases ReferredMathura Prosad v. Sheobalak Ram
Excerpt:
co-operative societies act (ii of 1912), section 43 - rules under, rule 22--award--civil court, if can interfere even if it is erroneous--attempt to go behind award, if justifiable--civil procedure code act (v of 1908), sections 47, 151--proceedings under section 47 terminated--fresh proceedings under section 151--order, if revisable. - .....proceedings that the order complained of has been made. a question then arises as to whether the learned munsif was justified in making the order which he made on april 7. it is contended that the award was final and cannot either be upset or interfered with by the civil court. on the other hand, it is urged that the action of the munsif does not constitute going behind the award. reference has been made to the rules made under section 43 of the co-operative societies act of 1912 and in particular to rule 22, sub-section 6, which states:an award of the arbitrators or a decision of the registrar under sub-rule 4 if not appealed against within one month and an order of the registrar or of the commissioner in appeal under sub-rule 5 shall, as between the parties to the dispute not be.....
Judgment:

McNair, J.

1. The petitioner who obtained this Rule is a decree-holder. Opposite Parties Nos. 2 to 4 who have appeared in this Rule are all sureties of the judgment-debtor. The judgment-debtor obtained loans on three bonds from the Digliadari Joutha Bank which is a rural bank registered under the Co-operative Societies Act of 1912. The judgment-debtor failed to pay the debt and the matter was referred to the Assistant Registrar of the Co-operative Society as an arbitrator. He made an award on May 16, 1932, and against that order no appeal was taken. The decree-holder applied to execute the award in the Munsif's Court. Objections were raised by the sureties under Section 47 of the Code of Civil Procedure. Those objections were upheld in the first Court and rectification of the award was ordered. On appeal, however, the learned District Judge on June 23, 1933, held that there was nothing to show that the award was without jurisdiction and that the executing Court had no power to go behind it. He, accordingly, allowed the appeal and ordered execution to proceed. Execution proceedings were resumed thereafter and certain properties were sold in execution and purchased by the decree-holder. An application was made under Order XXI, Rule 90, for setting aside the sale and an order was made setting aside the sale so far as the properties of judgment debtors Nos. 2 and 3 were concerned. The decree-holder appealed and the learned Subordinate Judge on April 7, 1934, allowed the appeal and suggested that the lower Court might take action under Section 151 of the Code of Civil Procedure and set aside the sale and all other proceedings in execution and send the award to the arbitrator for rectification of the annexures, which contained the liabilities of the sureties, and then start execution in three separate parts. A petition was accordingly, filed under Section 151 and the Munsif on July 17) 1934, ordered the execution proceedings to be set aside. It is with regard to this order that the present Rule was issued.

2. A preliminary objection was taken at the outset that this case does not come within the purview of Section 115 of the Code of Civil -Procedure for interference in revision because this is a matter under Section 47 and an appeal, therefore, lies. In my opinion, this was not a matter under Section 47. Proceedings under Section 47 had terminated and fresh proceedings had been instituted under Section 151 and it is in those proceedings that the order complained of has been made. A question then arises as to whether the learned Munsif was justified in making the order which he made on April 7. It is contended that the award was final and cannot either be upset or interfered with by the Civil Court. On the other hand, it is urged that the action of the Munsif does not constitute going behind the award. Reference has been made to the rules made under Section 43 of the Co-operative Societies Act of 1912 and in particular to Rule 22, Sub-section 6, which states:

An award of the arbitrators or a decision of the Registrar under Sub-rule 4 if not appealed against within one month and an order of the Registrar or of the Commissioner in appeal under Sub-rule 5 shall, as between the parties to the dispute not be liable to be called in question in any Civil or Revenue Court and shall be in all respects final and conclusive.

3. The interpretation of this Rule has been considered in this Court and there are various decisions upon it. Amongst them I have been referred to the decision in Mathura Prosad v. Sheobalak Ram 40 A 89 : 42 Ind. Cas. 968 : 15 ALJ 863 : AIR 1918 All. 419. It was there pointed out that the policy of the Act was that matters arising under the Act should be settled without litigation in the Courts and that if litigation were permitted, the whole object of the Co-operative Societies Act would be defeated. The policy of the Act was undoubtedly to enable agriculturists to obtain cheap and quick decision and there is no doubt that once an award has been made the Court has no power to have it rectified. In my' opinion, what the learned Munsif has attempted to do is to have the award, in his own words, 'corrected'. This question had already been agitated previously when the Munsif refused to execute the award and his decision was set aside on the ground that the Civil Court had no jurisdiction to refuse execution. I am satisfied that even though the award may be anomalous and erroneous, the Civil Court has no power to interfere with it and in my view this is what the learned Munsif has attempted to do. This is really an attempt to go behind the award and utilize the powers of the Court under Section 151 of the Code of Civil Procedure to obtain some sort of alteration which in his opinion would be in the ends of the justice. at is quite clear, however, from the cases and from the wording of the rule that this is beyond his power.

4. The Rule must, therefore, be made absolute and the order of the Munsif set aside.

5. The petitioner will get his cost in this Court. I assess the hearing fee at one gold mohur.


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