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1990 DIGILAW 596 (KAR)

BASAVARAJU v. STATE OF KARNATAKA

1990-10-24

H.G.BALAKRISHNA

body1990
BALAKRISHNA, J. ( 1 ) THIS is an instance of a comedy of errors. After the award was confirmed by the Karnataka appellate tribunal, the decree holder wanted to execute the award. Instead of making an application under Section 101 (l) (a) of the kar nataka Co-Operative Societies Act, 1959, by typing error, the provision was shown as Section 101-a. But the contents of the petition filed by the decree holder who is the petitioner herein clearly show that it was filed under Section 101 (1 ) (a) of the act and not under Section 101-a of the act. However, by bona fide mistake, respondcnt-2, by an endorsement dated 28-3-1983 under Annexure-F , informed the petitioner that his petition filed under Section 101-a will not be admitted since the petition does not come under the provision of Section 101-a of the act. ( 2 ) IT is now urged before me by the learned counsel appearing for the petitioner that the mention of the wrong provision of law was by bona fide mistake and that the concerned authonty has taken undue advantage of the same in order to harass the petitioner. ( 3 ) WHATEVER the intention may be of the concerned authority, the question for consideration is to what relief the petitioner is entitled. ( 4 ) THE fact that an award was passed in favour of the petitioner and subsequently it was confirmed by the appellate authority, is not in dispute. By virtue of the award, the petitioner is entitled to the fruits of the award. In order to enjoy the fruits of the award in the absence of spontaneous compliance on the part of the judgment-debtor, the only course open to the petitioner is to seek to certificate signed by the registrar or any authorised person in that behalf so that the decree could be executed. Certification is a condition precedent for execution of the decree. It is this certificate which the petitioner is seeking before the competent authority. There can be absolutely no doubt that the petitioner is entitled to such a certificate. Mere mention of a wrong provision of law should not be utilised to defeat the ends of justice. The competent authority ought to have examined the substance of the application after carefully considering the contents before issuing the im pugned endorsement to the petitioner. There can be absolutely no doubt that the petitioner is entitled to such a certificate. Mere mention of a wrong provision of law should not be utilised to defeat the ends of justice. The competent authority ought to have examined the substance of the application after carefully considering the contents before issuing the im pugned endorsement to the petitioner. In the instant case, there is a failure on the part of the competent authority to find out whether the request of the petitioner was reasonable or not, not by a mere reference to the provision of law mentioned but by reference to the contents of the petition. ( 5 ) IN the circumstances of the case, i aminclined to hold that the impugned endorsement issued under anncxure-f is not only untenable, but also misconceived notwithstanding the fact that there was some mistake in mentioning the provision of law by the petitioner. ( 6 ) FOR the foregoing reasons, the writ petition is allowed and the impugned endorsement is quashed. Respondent-2 is directed to treat the application filed by the petitioner dated 23-3-1983, as an application filed under Section 101 (l) (a) of the Karnataka Co-Operative Societies Act, 1959, and grant a certificate as sought by the petitioner expeditiously. Time limit for compliance is 45 days from the date of receipt of a copy of this order. If no action is taken, it is open to the petitioner to approach this court for necessary action. --- *** --- .