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1956 DIGILAW 29 (KER)

Varghese v. State of T. C.

1956-03-02

M.S.MENON

body1956
Judgment :- 1. The petitioner seeks a writ of certiorari quashing an award, No.1138 of 1110, passed by the 2nd respondent, the Registrar of Co-operative Societies, Trivandrum, and a writ of prohibition restraining that respondent and respondent No. 3, the Inspector of Co-operative Societies, Pampady, Kottayam, "from taking any proceedings against the petitioner under the Revenue Recovery Act, or the Co-operative Societies Act, for the realisation of the amounts alleged to be due under the said Award". 2. The contentions urged before me on behalf of the petitioner are those stated in Para.2, 3 and 4 of the petition: "2. The alleged award is a fraudulent one. It has been passed contrary to the provisions of the Co-operative Societies Act and without any previous notice to the petitioner. 3. Since the award has been passed without hearing the petitioner, the respondents have violated the principles of natural justice. 4. The award being of the year 1110, it is prima facie time barred cannot be enforced against the petitioner". I am unable to see any fraud in the passing of the award or any violation of the provisions of the Travancore-Cochin Co-operative Societies Act, 1951, or the principles of natural justice. The award was passed ex parte and in the absence of proof I must assume that the prescribed procedure was followed and that it was after the necessary steps had been taken that the said award was made. 3. The controversy is not that there is a lacuna in the procedure adopted for the service of summons but that the proceedings are fraudulent and without the issue of any notice to the petitioner. A copy of the notice served on the petitioner is no doubt not available in the file but there is a letter from the arbitrator dated 28.6.1112 forwarding the original of the award to the Registrar of Co-operative Societies wherein it is stated: I see no reason to disbelieve the statements made in the letter above mentioned. 4. A copy of the notice served on the petitioner is no doubt not available in the file but there is a letter from the arbitrator dated 28.6.1112 forwarding the original of the award to the Registrar of Co-operative Societies wherein it is stated: I see no reason to disbelieve the statements made in the letter above mentioned. 4. S.63 of the Travancore-Cochin Co-operative Societies Act, 1951 (Act X of 1952), provides: "Every order passed by a liquidator under S.55 or by the Registrar under sub-s. (1) of S.58 or by the Registrar or his nominee or arbitrators on disputes referred to him or them under clause (f) of S.55 or under S.60, every order passed in appeal under S.50 and every order passed under S.69, shall, if not carried out; (a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court; or (b) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue, provided that any application for the recovery in such manner of any such sum, shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or by any of his assistants to whom the said power has been delegated by the Registrar" and the execution sought is under the provisions of sub-s. (b) of that section. 5. The award was passed on 9.2.1936 (27.6.1111) and the execution application with which I am concerned is Ext. A No. 232 of 1952. It is agreed that execution under the provisions of sub-s. (a) of S.63 is barred by limitation and the only question for consideration is: "What, if any, is the period of limitation when execution is sought not under sub-s. (a) but under sub-s. (b)?" No period of limitation for execution, under sub-s. (b) is seen to have been prescribed either in the Travancore-Cochin Co-operative Societies Act, 1951, or in the Travancore-Cochin Revenue Recovery Act, 1951, and the learned counsel for the petitioner was unable to draw any attention to any statutory provision in that behalf. In view of this I must hold that the execution is not barred by limitation and that the petitioner's contention to that effect cannot be sustained. 6. In view of this I must hold that the execution is not barred by limitation and that the petitioner's contention to that effect cannot be sustained. 6. Such a conclution appears to have been accepted in AIR 1947 Bombay 375 in the following passage from that judgment: "It is a well established rule of law in cases which are not governed by S.28, limitation merely bars the remedy but does not extinguish the title. Even assuming that the Civil Courts are right in holding that the remedy of the parties is barred in the civil court by reason of the application of Art.181, Limitation Act, it does not follow that the award becomes infructuous; and if it was open to the party, under the alternative remedy given to it, to apply to the Collector for a certificate from the Registrar to recover the amount as arrears of land revenue, it does not appear that that remedy would not be available to the party concerned. As pointed out by Garth, C.J. in Mahomed Hossien v. Kokil Singh & Ors. 7 Cal. 91. 'It is erroneous to suppose that because the right to take out execution upon a decree is barred by limitation, the decree itself has ceased to subsist; the decree remains, and will ever remain in full force, as an adjudication of the rights of the parties'. If under the law it is open to a party to execute that decree in another forum, and if, resort to that forum is not barred by any statute of limitation, then there is nothing in law to prevent that party from resorting to that remedy, and it is conceded before us that so far as execution of the award decree by the revenue authority is concerned, there is no bar of limitation." 7. It follows that the petition has to be dismissed and it is hereby dismissed though in the circumstances of the case without any order as to costs.