T. Lokesh, S/o M. Thimmaiah v. Town Sahakara Sangha
2021-04-05
N.S.SANJAY GOWDA
body2021
DigiLaw.ai
ORDER : 1. The Judgment Debtor is challenging the order passed by the Executing Court by which it has been held that the execution petition filed by the Decree holder was maintainable. 2. The admitted facts are that the respondent – Decree holder obtained an award at the hands of the Assistant Registrar who had exercised his power under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ‘the KCS Act’ for short). The decree holder thereafter obtained a certificate from the Registrar entitling him to execute the award before the Civil Judge, Turuvekere. On the basis of the said certificate an execution petition was filed before the Civil Judge, Turuvekere seeking to execute the award passed in favour of the respondent – decree holder. 3. It was the case of the petitioner – Judgment Debtor that the Civil Court had no jurisdiction to execute the award passed by the Assistant Registrar in exercise of his power under Section 70 of the KCS Act. It was stated that Section 118 of the KCS Act was a complete bar for the Civil Court in the matter of execution of any award and therefore the executing Court had no jurisdiction. 4. Learned counsel for the respondent – Decree holder on the other hand submits that Section 101 of the KCS Act provides for multiple modes of executing an award passed by the Assistant Registrar and one of the permissible modes was to obtain a certificate from the Registrar and seek for recovery as if the award was a decree of the Civil Court. It is submitted that since a certificate had been obtained, the execution filed before the Civil Court was maintainable and the contentions of the petitioner was untenable. 5. Section 101 of the KCS Act reads as follows: “101.
It is submitted that since a certificate had been obtained, the execution filed before the Civil Court was maintainable and the contentions of the petitioner was untenable. 5. Section 101 of the KCS Act reads as follows: “101. Execution of orders, etc.-Every order made by the Registrar under sub-section 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 authorized 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 and 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 authorized by him in this behalf; 1959: KAR. ACT 11] Co-operative Societies (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 (c) be executed by the Registrar or any other person subordinate to him empowered 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.” 6. As could be seen from the said KCS Act, there are essentially three modes in which an award passed in a dispute decided under Section 70 of KCS Act can be executed. 7.
As could be seen from the said KCS Act, there are essentially three modes in which an award passed in a dispute decided under Section 70 of KCS Act can be executed. 7. The first mode contemplates the person who has obtained a decree is required to obtain a certificate signed by the Registrar and on such certificate being obtained, the award is deemed to be a decree and can be executed in the same manner as a decree of the Civil Court. 8. The second mode contemplated for execution of an award is recovering the sums due under the award as if it was arrears of land revenue. 9. The third mode that is contemplated under Section 101 of the KCS Act is that an award can be executed by the Registrar or any other person subordinate to him by an attachment and by sale or sale without attachment of any property of a person against whom an award has been passed. 10. Section 118 of the KCS Act which creates a bar on jurisdiction of the Courts reads as follows: “118. Bar of jurisdiction of courts.-(1) Save as provided in this Act, no civil, labour or revenue court or Industrial Tribunal shall have any jurisdiction in respect of,- (a) the registration of a co-operative society or bye-laws or of an amendment of a byelaw; (b) the removal of a member of the removal and disqualification of a director or the removal of a board ; (c) any surcharge application required under section 69 or any dispute required under section 70 to be referred to the Registrar or the recovery of moneys under section 100 or the execution of any award or order referred to the Registrar for execution under Section 101; (d) any matter concerning the winding up and the dissolution of a co-operative society. (2) While a co-operative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with, or instituted against, the Liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose. (3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever.” (underlining by me) 11.
(3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever.” (underlining by me) 11. As could be seen from Section 118(1)(c) of the KCS Act, the bar for Civil Courts would be in respect of execution of any award or order which has been referred to the Registrar for execution under Section 101 of the KCS Act. In other words, if an execution petition has been already filed before the Registrar, then the jurisdiction of the Civil Court to execute an award would be barred. 12. It is obvious that the bar under Section 118 of the KCS Act is to prevent parallel execution of the same award. The intent of the legislature is that a person has the choice to obtain the dues under an award, by either going to the Civil Court or to the Deputy Commissioner or to the Registrar. Once the person who has obtained an award approaches the Registrar, the law creates a bar for that person to approach the Civil Court for execution of the award. 13. The argument of the learned counsel that Section 118 of the KCS Act is a complete bar for the Civil Courts to entertain any execution petition cannot be accepted. It is to be noticed that the statute offers a choice for a decree holder to seek for recovery of dues under the Award. One of the modes permissible is to approach the Civil Court. If the argument of the counsel is to be accepted, it would tantamount to rendering Section 101(1)(a) of the KCS Act redundant. 14. If the intent of the Legislature was to enable the decree holder to approach only the Registrar and seek for execution of the award, Sub Section (a) and (b) of Section 101 (1) of the KCS Act would never have been incorporated in Section 101 of the KCS Act. 15. I am therefore of the view that the execution petition could not be maintained before the Civil Court cannot be accepted.
15. I am therefore of the view that the execution petition could not be maintained before the Civil Court cannot be accepted. The Executing Court has correctly come to the conclusion that under Section 101(1)(a) of the KCS Act, on a certificate being obtained by the decree holder, the award is required to be treated as a decree and has also be executed in the same manner as if it was a decree of the Civil Court. 16. The Executing Court has correctly come to the conclusion that it had the jurisdiction to execute the award. There is no infirmity in the order passed by the Execution Court trial Court and the revision is accordingly dismissed.