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The Nalagarh Dehati Co-operative Transport Society Ltd. Etc. Vs. Suraj Mani Etc. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtHimachal Pradesh High Court
Decided On
Case NumberEx. Second Appeal Nos. 3 to 8 of 1975
Judge
Reported inAIR1977HP35
ActsHimachal Pradesh Co-operative Societies Act, 1969 - Section 87; ;Himachal Pradesh Co-operative Societies (Amendment) Act, 1972; ;General Clauses Act, 1897 - Section 6; ;Himachal Pradesh General Clauses Act, 1969 - Section 4; ;Code of Civil Procedure (CPC) , 1908 - Sections 47 and 100
AppellantThe Nalagarh Dehati Co-operative Transport Society Ltd. Etc.
RespondentSuraj Mani Etc.
Appellant Advocate Bhawani Singh, Adv.
Respondent Advocate M.G. Chitkara, Adv.
DispositionAppeal dismissed
Cases ReferredIn Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman
Excerpt:
- .....sub-judge and thereby dismissed the objections of the appellant preferred under section 47 of the civil procedure code, the facts arising out of these appeals are not controverted and may, in brief, be stated as follows.2. under the punjab co-operative societies act, 1961, a dispute arose between the appellant and the respondent in respect of certain demand placed by the respondent upon the appellant and such disputes were referred to arbitration and awards were given against the respondent. under section 63 (a) of the act the awards were deemed to be a decree of a civil court and were executed in the same manner as decree of such court. accordingly the execution was solicited in the court of the senior sub-judge and after the necessary step of attachment etc., the property belonging to.....
Judgment:

D.B. Lal, J.

1. These are six Execution Second Appeals and have been directed against the judgment of the District Judge, Solan who has upheld in appeal the judgment of the Senior Sub-Judge and thereby dismissed the objections of the appellant preferred under Section 47 of the Civil Procedure Code, The facts arising out of these appeals are not controverted and may, in brief, be stated as follows.

2. Under the Punjab Co-operative Societies Act, 1961, a dispute arose between the appellant and the respondent in respect of certain demand placed by the respondent upon the appellant and such disputes were referred to arbitration and awards were given against the respondent. Under Section 63 (a) of the Act the awards were deemed to be a decree of a civil court and were executed in the same manner as decree of such court. Accordingly the execution was solicited in the Court of the Senior Sub-Judge and after the necessary step of attachment etc., the property belonging to the appellant was likely to be sold in auction. At that stage objections under Section 47, Civil Procedure Code, were filed by the appellant and in these objections it was asserted that no dispute in the eye of law existed within the meaning of Section 55 of the Punjab Co-operative Societies Act, 1961, or its corresponding Section 72 of the Himachal Pradesh Co-operative Societies Act, 1968 which could be referred to the arbitrator. Therefore, the award was a nullity and it was even without jurisdiction. It was also stated that there was a collusion between the arbitrator and the respondent. Besides a legal notice was not given to the appellant and as such the award was a nullity. The learned Senior Sub-Judge refused to entertain the objections merely on the ground that as execution Court he could not go behind the decree. The appellant came in appeal before, the District Judge; but there too he remained unsuccessful. Now the present second appeals are filed against the judgment of the learned District Judge.

3. It is reiterated in second appeals that there was no dispute within the meaning of Section 72 which could be referred to the. arbitration under Section 73 of the Himachal Pradesh Co-operative Societies Act, 1968. The award was a nullity and also without jurisdiction. A legal notice was not given to the appellant by the arbitrator. Besides, it is also contended that the issues framed by the Courts below were wrong. Another formidable objection is taken in second appeal with reference to Section 87 of the Act inasmuch as the said section has been amended by the Himachal Pradesh Co-operative Societies (Amendment) Act, 1972 andClause 1 (a) of Section 87 has been deleted and the only mode of execution prescribed is by the Collector under a certificate signed by the Registrar for recovery of the amount as arrears of land revenue, In other words, contends the appellant, the award is no longer to be deemed a decree of the Civil Court and as such cannot be executed in the Court of the Senior Sub-Judge.

4. As regards the plea relating to the amendment of Section 87, during the pendency of appeal I think it would be a case of repeal for which Section 4 of the Himachal Pradesh General Clauses Act, 1968, will be applicable. Under Section 4 (e) of this Act the repeal shall not affect the previous operation of the enactment eo repealed, nor would it affect any legal proceeding in respect of any liability incurred under the previous enactment. In other words, the legal proceeding has to continue as if the repealing Act had not been passed. There can be no doubt that it is a case of repeal of one remedy which is not substituted by another. Rather there were two remedies before; one, execution of the award as a civil court decree, and the other, realisation of the amount as arrears of land revenue. In its place now there is only one remedy, namely, the recovery of the amount as arrears of land revenue. The provision has been repealed and is not replaced by another provision, meaning thereby that Section 4 (e) shall have its full effect in such a case of repeal. The previous operation of the enactment was obviously this that the execution was sought for and definite steps were taken in the course of that execution as if the decree was of a civil court. Attachments have also taken effect and the legal proceeding has to continue for auction of the property attached. Such a legal proceeding has to be carried on as if the enactment was not repealed. That is the simple operation of Section 4 (e) of the Himachal Pradesh General Clauses Act, 1968.

5. It is true no person has a vested right in a course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act the mode of procedure is altered he has no other right than to proceed according to the altered mode. In other words, a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. But the other important principle is as much there based on the theory of repeal and based on the effect of repeal laid down in Section 6 iof the General Clauses Act or Section 4 (e) of the Himachal Pradesh General Clauses Act, 1968--namely that the previous operation of the enactment so repealed will not be affected and any legal remedy which is already there will have to be carried on under the enactment as if the same was not repealed. The Full Bench case reported in Ram Singh v. The Crown, (AIR 1950 East Punj 25) (FB) comes very near this point. It is equally well settled, as their Lordships held, that the validity or operation of any order validly passed or any act validly done by a judicial tribunal under the procedural law for the time being in force cannot be affected by any subsequent change in the said law. If there are any proceedings which are not covered by the new rules or for which the new rules do not provide, it is obvious that the Courts shall have to deal with those proceedings in accordance with the law in force at the time of initiation of those proceedings, The retrospective operation given to a rule of adjective law cannot be taken to idestroy the operation of another rule of the same law in relation to proceedings for which the new rule does not provide, which proceedings had been properly and legally initiated in accordance with that other rule and at a time when the said rule was actually in force. Keeping regard to this principle and inasmuch as the new enactment does not provide any substitution in procedure for execution as decree of civil court, the old procedure shall be deemed to exist and the proceeding initiated under that procedure will be carried to the end. In Nani Gopal Mitra v. State of Bihar, (AIR 1970 Supreme Court 1636) their Lordships of the Supreme Court have also laid down that a change in procedural law during pendency of cases instituted under old procedural law will not affect the old procedure insofar as the pending proceeding is to be completed and made effective. According to their Lordships, thig is embodied in the principle laid down in Section 6 of the General Clauses Act. In fact the enquiry under Section 6 of the General Clauses Act is not as to whether the new Act expressly keeps alive the old rights and liabilities but whether it manifests an intention to destroy them. It was never the intention of the amended Section 87 that the previous liability incurred or the previous obligation decided by executing the award as a civil court decree are destroyed. This view has been upheld by their Lordships of the Supreme Court in Jayantilal Amrathlal v. The Union of India, (1971) 1 SCWR 424 = (AIR 1971 SC 1193). In my opinion, therefore, whatever stage has been arrived at in execution of the award as a civil court decree will not be destroyed. Rather the execution shall have to be carried to its end in accordance with the old provision.

6. The learned counsel then insisted that the award itself was without jurisdiction. In that connection he Urged that there was no dispute in existence within the meaning of Section 72 of the Himachal Pradesh Co-operative Societies Act, 1968. The learned counsel pointed out with reference to one Ganga Ram who is respondent in Execution Second Appeal No. 5 of 1975 and another Ganga Ram respondent in Execution Second Appeal No. 7 of 1975, that he was not a member of the Society and as such a dispute concerning his demand was not covered under Section 72. For this, obviously some evidence was required to prove that Ganga Ram was not a member or a person claiming through a member. A plea of jurisdiction which requires evidence to sustain cannot be considered a plea which appears on the face of the record. Such a plea of jurisdiction cannot be raised in second appeal. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (AIR 1970 SC 1475) their Lordships held that an objection as to inherent jurisdiction of the Court to pass a decree can be raised in an execution proceeding provided the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examinations of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In these cases, it is apparent the objection as to inherent jurisdiction required support of facts which were proved or disproved in the Courts below. Such an objection cannot be considered to be present on the face of the record and as such in second appeal the objection cannot be raised.

7. Regarding the other objections that no legal notice was given to the appellant or that the issues framed were wrong or that the statements were cyclestyled and then read in evidence are undoubtedly not amenable to the appellant in second appeal. All these questions have either been decided against the appellant or have not been raised during the proceedings in the Courts below.

8. Thus I am of the opinion that the appeals were rightly dismissed and there is no compelling reason to take a different view in second appeal. These appeals are, therefore, dismissed without making any order as to costs.

9. The decision is being given in Execution Second Appeal No. 3 of 1975, and shall govern the decisions in Execution Second Appeals Nos. 4 of 1975, 5 of 1975, 6 of 1975, 7 of 1975 and 8 of 1975. A copy of this judgment shall be kept on the records of those appeals.


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