Zila Sahkari Bhoomi Vikas Bank Maryadit, Sidhi v. Shrikant Mishr
2008-12-19
K.C.SHARMA, P.D.MISHRA
body2008
DigiLaw.ai
JUDGMENT 1. Being aggrieved by the order passed by Jt. Registrar Co-operative Societies, Rewa in FA No. 77-1/99 and 80-12-1999 dated 17.11.2000 this appeal has been preferred by the appellant Bank. 2. Brief facts of the case are that the appellant is a Co-operative Land Development Bank registered u/s 9 of the Act. Appellant No.2 is Sales Officer of it authorized under law to conduct auction and sale of the judgment debtor. Respondent No.1 Shri Shrikant Mishr and respondent No.5 Shri Chindlal had borrowed loan of Rs. 26,000/- and Rs. 50,000/- respectively on 15.9.1980 for the purch3;$e of tractor. Because of default in repayment of this loan, the tractor was auctioned on 28.6.1984 at the price of Rs. 30,000/. Aggrieved by this auction, the respondent filed a dispute u/s 64 before Assistant Registrar Co-operative Societies, Sidhi, who set aside the sale and ordered that the tractor be returned back. This order was confirmed by Jt. Registrar Co-operative Societies, Rewa as well as further Board of Revenue, Gwalior vide order dated 2.5.1991. Respondents filed an application u/s 85 for the execution of this order. Assistant Registrar while making assessment of the price of the tractor evaluated a loss of Rs. 20,731/0 in addition to the earlier auctioned price of Rs. 30,000/-. Jt. Registrar Co-operative Societies, Rewa has upheld this order. Hence, this second appeal. 3. Tribunal in its order dated 22.8.2005 had issued following direction to the contesting parties: "(i) That the Tractor which was ordered to be returned to the respondents was sold by appellant Bank on 28.6.1984 for Rs. 30,000/-. (ii) That the orders passed by the Assistant Registrar Co-operative Societies, u/s 64 of M.P. Cooperative Societies Act, 1960 and confirmed by Board of Revenue, requiring Bank to return the tractor has reached to the finality and the Bank is bound to comply with the orders of the Assistant Registrar Cooperative Societies dated 28.6.1984. (iii) That in view of the fact that the tractor has already been sold by the Bank in execution the only option left with the Bank to return Rs.30,000/- to the respondents along with rate of interest prevailing on Saving Bank account from time to time, on the basis of equitable justice.
(iii) That in view of the fact that the tractor has already been sold by the Bank in execution the only option left with the Bank to return Rs.30,000/- to the respondents along with rate of interest prevailing on Saving Bank account from time to time, on the basis of equitable justice. The learned counsel for the contesting parties admirably concedes that the Bank and the contesting respondents shall sit together and settle their account (including loan recovery matter) and inform the Tribunal on or before 19.9.2005 failing which final orders shall be passed by this Tribunal in view of the above said admitted facts on next date of hearing." 4. Counsel appearing for the respondents agitating all these points submitted that the appellant have not facilitated any meeting and the accounts have remained un-settled after the lapse of three and a half years. It was further argued that the appeal be dismissed on this very account as it is devoid of all merits. 5. Counsel for the appellants Shri D.K. Saxena focused his arguments only on one point. According to him learned Assistant Registrar while executing the order well upheld as high as from the Board of Revenue itself had no liberty to reassess the valuation of the tractor auctioned. He has certainly exceeded in his powers. Moreover, it was further argued that an order which is final in nature and was upheld by the Board of Revenue could not have been interpreted and reassessed. Therefore, it was submitted that the orders of Assistant Registrar as well as Jt. Registrar be set aside. 6. It is worthwhile at this juncture to ponder upon the maintainability of this case in the second appeal or first appeal filed before Jt. Registrar Cooperative Societies, Rewa against the proceedings of the executing authority. It is undisputed that the original order passed by Assistant Registrar was upheld by Jt. Registrar as well as by Board of Revenue and it was only under execution in section 85 of the Act as applied by the respondents. 7. Section 78 of the Act provides "Appeals before the Registrar and Tribunal-- (1) Save where it has been otherwise provided, an appeal shall lie from very original order under this Act or Rules made there under." In all certainly the impugned order of the Assistant Registrar before the Jt.
7. Section 78 of the Act provides "Appeals before the Registrar and Tribunal-- (1) Save where it has been otherwise provided, an appeal shall lie from very original order under this Act or Rules made there under." In all certainly the impugned order of the Assistant Registrar before the Jt. Registrar is not an original order but an incidental order because the executing authority cannot go back into the originality of the matter and supplement the original order in any manner whatsoever. We are therefore of the considered opinion that neither the First Appeal before the Jt. Registrar nor a Second Appeal before the Tribunal would have bind against the order of Assistant Registrar passed in execution proceedings u/s 85 of the Act. 8. However, as this matter has been argued at length and has also been pending for so many years and also because the history of the case is about a quarter century old, we would not like to dismiss the matter on the above technical ground but settle it as an exception for the things to come to a final cause. 9. The simple matter as pointed out earlier is only thus that whether the Assistant Registrar in execution proceeding before him while assessing the value of auctioned tractor was right or wrong. There are some such situations where the competent authority has to exercise his discretional powers. Section 151 of Court of the Code of Civil Procedure, 1908 clearly visualizes such situation and provides the competent authority to exercise inherent powers for meeting ends of justice or to prevent abuse of the process of the Court. Surely Assistant Registrar in his wisdom has done the valuation of the price of the auctioned tractor and that has been upheld in the first appeal. 10. In the light of the above discussion, we do not find any merit in the appeal and there is no case of interference with the order of the Jt. Registrar or the Assistant Registrar assailed through this appeal. Consequently, the appeal is disallowed and the orders of the Courts below are hereby confirmed.