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2008 DIGILAW 249 (KAR)

Subray Krishnaiah Hegde v. Manager, Siddapur Taluk Vakkalutana Huttuvali Maratha Sahakari Sangh Niyamith, Siddapur

2008-05-28

D.V.SHYLENDRA KUMAR

body2008
ORDER D.V. Shylendra Kumar, J. This civil revision petition under Section 115 of the Code of Civil Procedure, is to get over the adverse order the legal heirs of judgment debtor suffered at the hands of the Executing Court in their effort to avoid execution of award passed by the arbitrator under Section 70 of the Karnataka Co-operative Societies Act, 1959 (for short, the Act), as the learned judge of the Executing Court under the impugned order held that the execution petition was not barred by limitation as contended by the judgment debtor. 2. The petitioners, who are legal heirs of the original judgment debtor, who was a member of the decree holder- society and it appears had borrowed some amount for agricultural operations, having failed to pay the amount, the society raised a dispute and the matter being referred to arbitrator by the registrar, got an award in its favour in CEP 2/1974-75 dated 31-8-1974. 3. The judgment debtor, it appears, had preferred an appeal against this award to the Karnataka Appellate Tribunal in Appeal No 731 of 1974, which came to be dismissed on 1-1-1986, against which the judgment debtor had also filed a review petition in Review Petition No 3 of 1986, which also met with the same fate of dismissal on 5-11-1986. 4. It appears that the decree holder, who had sought to execute the award through a certificate issued by the registrar even during 1974-75 in CEP No 2/74-75, could not make much headway from the earlier stages due to the pendency of the appeals of the judgment debtor and was unable to realize the amount and as such, it appears, sought for issue of a certificate in favour of the decree holder in terms of sub-clause (1) of Section 101 of the Act seeking to execute the award through a civil Court. It is thereafter the execution case was filed before the civil Court in Ex-Petition No 14 of 1994. 5. A preliminary objection regarding the pecuniary jurisdiction of the Court was raised by the judgment debtor and the matter was ultimately resolved by this Court in CRP No 128 of 1995, holding that the Executing Court had jurisdiction, but directing the Executing Court to examine the question of limitation raised by the judgment debtor and even by receiving evidence for such purpose. 6. 6. The executing Court, after receiving evidence etc., having answered this question of limitation in favour of the decree holder and seeking to execute the award, the judgment debtor is again before this Court in this revision petition contending that the Executing Court is not right in holding that the execution petition was not barred by limitation. 7. Appearing for the petitioners, submission of Sri R. G. Hegde, learned Counsel is that the execution petition was clearly barred by limitation, particularly as the award was passed on 31-3-1974, an execution levied in the year 1994 before a civil Court after 20 years from the date of passing of the award, is definitely hit by law of limitation, particularly in terms of proviso to Section 101(1) of the Act. Submission is that award should have been executed within 12 years from the date of passing of award. 8. In this regard, learned Counsel has also drawn my attention to the provisions of Sections 70, 71, 99, 100 and 101 of the Act as also Chapter - IX and the Karnataka Co-operative Societies Rules, 1960 (for short, the Rules) providing for the mode of execution of an award, decree order of decision. Submission is that the award passed in the year 1974 had not been stayed by any order of an higher forum and therefore should have been necessarily executed within 12 years from the date award. 9. Alternative submission of Sri Hegde is that the decree holder having obtained a certificate once earlier and having sought to realize the amount through the assistant registrar of co-operative societies and having failed therein, could not have sought for execution to the award before a civil Court, by obtaining a second certificate. 10. 9. Alternative submission of Sri Hegde is that the decree holder having obtained a certificate once earlier and having sought to realize the amount through the assistant registrar of co-operative societies and having failed therein, could not have sought for execution to the award before a civil Court, by obtaining a second certificate. 10. Submission of learned Counsel for the petitioners is that the Act, particularly, provisions of Section 101 do not enable the decree holder to resort to several modes of recovery after failing in one mode; that the decree holder has to adhere to a particular mode of recovery and therefore it is submitted that if the decree holder had failed in its attempt to realize the award amount through the assistant registrar as recovery officer with the certificate issued by the registrar, they have to stick to that mode of recovery and cannot turn around to seek for issue of another certificate from the registrar to execute the award through a civil Court. 11. On the other hand, Sri Jayaprakash, learned Counsel appearing for the respondents, supports the impugned order. 12. Section 101 of the Act reads as under: 101. Execution of orders, etc. 11. On the other hand, Sri Jayaprakash, learned Counsel appearing for the respondents, supports the impugned order. 12. Section 101 of the Act reads as under: 101. Execution of orders, etc. (1) Every order made by the Registrar under sub-section (1) of Section 69 or under Section 99, every decision or award made under Section 71, every order made by the Liquidator under Section 74 and every order made by the Tribunal under Sections 105 and 107, and every order made under Section 106 or 108 shall subject to any other provision of this Act be binding on the person or co-operative society against whom the order, decision or award has been obtained or passed and shall, if not carried out, (a) On a certificate signed by the Registrar, or any person authorised by him in this behalf, 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 under the rules for the time being in force for the recovery of arrears of land revenue: Provided that an application for the recovery in such manner of any sum shall be made (i) to the Deputy Commissioner and shall be accompanied by a certificate signed by the Registrar or by any person authorised by him in this behalf; (ii) within twelve years from the date fixed, in the order, decision or award, and if no such date is fixed, from the date of the order, decision or award, as the case may be; or (iii) be executed by the Registrar or any other person subordinate to him empowered by the Registrar in this behalf, by the Registrar in this behalf, by the attachment and sale or sale without attachment of any property of the person or a co-operative society against whom the order, decision or award has been obtained or passed. (2)(a) Notwithstanding anything contained in this Act, every question relating to the execution, discharge or satisfaction of an order, decision or award referred to in sub-section (1) or relating to the confirmation or setting aside of a sale held in an execution of such order, decision or award in pursuance of Clause (c) of sub-section (1), or relating to any claim or objection to an attachment of any property made under Section 103 or in execution in pursuance of the said Clause (c), shall be determined, by an order of the Registrar or any other person subordinate to him empowered by the Registrar under the said Clause (c) (hereinafter in this section referred to as authorised person) before whom such question arises. (b)(i) Where any claim is preferred against or any objection is made to the attachment of any property made under Section 103 or in execution in pursuance of clause (c) of sub-section (1) on the ground that the said property is not liable to such attachment, the Registrar or the authorised person shall proceed to investigate the claim or objection: Provided that where the Registrar or the authorised person considers that the claim or objection was designedly or unnecessarily delayed he shall make an order refusing such investigation. (ii) Where upon the said investigation the Registrar or the authorised person satisfied that for the reason stated in the claim or objection such property was not, at the date of the attachment, in the possessing the person or co-operative society against whom the order, decision or award has been obtained or passed (hereinafter in this section referred to as the judgment-debtor) or of some person in trust for the judgment debtor or in the occupancy of a tenant or other person paying rent to the judgment - debtor at the said date, it was so in his possession, not in his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person the Registrar or the authorised person shall make an order, releasing the property, wholly or to such extent as he thinks fit, from attachment. (iii) Where the Registrar or the authorised person is satisfied that the property was on the said date, in the possession of the judgment-debtor as his own property and not on account of any other person or was in the occupancy of a tenant or other person paying tent to him, the Registrar or the authorised person shall disallow the claim (iv) Where a claim or an objection is preferred, the party against whom an order is made may within a period of one year from the date of such order, institute a suit in a Civil Court to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order of the Registrar or the authorised person shall be conclusive. A reading of this provision while indicates that the Section does not rule out resorting to several modes of recovery, particularly by use of language as employed in Section 100, which opens with a non-abstante clause, which reads as under: 100. Recovery of moneys due to Societies. (1) Notwithstanding anything contained in Chapter IX or any other law for the time being in force, on an application made by an approved society for the recovery of arrears of any sum advanced by it to any of its members on account of the financing of crabs or seasonal finance and on its furnishing a statement of accounts in respect of the arrears, the Registrar may, after making an enquiry in such manner as may be prescribed, grant a certificate for the recovery of the amount stated therein to be due as arrears: Provided that if the determination of the amount due from any person to the society depends upon decisions on complicated questions of fact or law, the Registrar shall dispose of the case in accordance with the provisions of Section 71 as if it were a dispute referred to him for decision under Section 70. (2) A certificate granted by the Registrar under sub-section (1) shall be final and conclusive. The arrears stated to be due therein shall be recoverable as arrears of land revenue or according to the procedure provided in Section 101: Provided that any error in such certificate may be rectified by the Registrar suo motu or on the application of the society or the member affected by the certificate. The arrears stated to be due therein shall be recoverable as arrears of land revenue or according to the procedure provided in Section 101: Provided that any error in such certificate may be rectified by the Registrar suo motu or on the application of the society or the member affected by the certificate. (3) It shall be lawful for the Deputy Commissioner to take precautionary measures authorised by Section 188 of the Karnataka Land Revenue Act, 1964, until the arrears due to the society together with interest and any incidental charges incurred in the recovery of such arrears are paid or security for payment of such arrears is furnished to the satisfaction of the Registrar. Explanation - For the purpose of this section,- (i) “approved society” shall mean a society of such class of societies declared to be approved societies for purposes of this section by rules; (ii) “ financing of crops” shall mean advancing of loans for the raising of crops during the ploughing season or later for ploughing weeding, harvesting, purchase of seeds, manure or for such other purposes as may be prescribed by the Registrar, such loans being repayable during the season when the crops for which the loans were advanced are harvested. (iii) “seasonal finance” shall mean the advancing of loans for such purposes as may be specified by notification in the official Gazette, by the Registrar, such loans being repayable on or before the 31st of March following or such other date as may be specified by a like notification by the Registrar. read in conjunction with the provisions of Section 101, I am clearly of the view that the Act does not put an embargo on a decree holder to adhere to only one mode of execution of the award or realizing an award. Therefore the argument that the decree holder if had not realized the award through the assistant registrar on an earlier certificate issued by the registrar cannot seek for issue of a fresh certificate in the year 1993 for executing the award through a civil Court, cannot be accepted. 13. Therefore the argument that the decree holder if had not realized the award through the assistant registrar on an earlier certificate issued by the registrar cannot seek for issue of a fresh certificate in the year 1993 for executing the award through a civil Court, cannot be accepted. 13. In so far as the question of limitation is concerned, I find that the award though was passed by the arbitrator in the year 1974, as rightly observed by the learned judge of the Executing Court, the decree holder did not allow the matter to set at rest but carried the matter by way of appeals and the matter had attained finality only in the year 1986. An application sought for executing the award which had become final in the year 1986 by making an application in the year 1993, that too as the earlier CEP No 2/74-75 issued on 31-8-1974 was not productive, cannot be said to be one barred by limitation nor can it be said that the execution levied in the year 1994 to execute a certificate issued by the registrar under Section 101 of the Act was barred by limitation. Within a year or so of the issue of the certificate, it was sought to be executed and there is no question of the enforcement of the award being denied as barred by limitation. In fact the Court is executing on the basis of the certificate and the certificate if at all cannot be executed by a civil Court, only if more than 12 years has elapsed, from the date of issue of the certificate as the certificate is treated as a decree of the civil Court. Such is not the situation in the present. 14. Therefore, I do not find any merit in the civil revision petition warranting interference with the order passed by the Executing Court. 15. In the result, this revision petition is dismissed.