CO OPERATIVE SOCIETY OF DEBTS Vs. NANDLAL

JUDGEMENT

(1.) This appeal arises out of execution proceedings of a decree passed by an arbitrator under the Co-operative Credit Societies Act. The appeal was presented to the Judicial Committee of the State and is now before us under Art. 374 (4) of the Constitution.

(2.) Raja Nandlal was a member of the decree-holder society and was also its debtor. A dispute arose between him and the society and under the rules governing such societies the matter was referred to arbitration. The arbitrator on 19 Meher 1352F. passed a decree against him in the sum of Rs. 8100 payable in equal six monthly installments with six per cent interest, the first instalment being payable at the end of Asur 1353F. On 2nd Dai 1353F, under the provisions of S. 42, cl. (d), Co-operative Societies Act, the decree was sent for execution to the civil Court on a certificate issued under the signature of one Moulvi Mohammed Hasan, Madadgar Nazim. The amount recoverable was stated as Rs. 8100 principal and Rs. 666 9 0 interest. On the same day the decree-holder presented an application for execution of the decree to the civil Court, Balda, claiming recovery of Rs. 10,339-14-9. It was alleged that as default had been committed in the payment of the first instalment due in the month of Azur 1353F., the whole decretal amount had become recoverable. It was prayed that the property detailed in the application be attached. On 3rd Dai 1353F. i. e., a day after the presentation of the application for execution, the judgment debtor deposited a sum of Rs. 1000 towards the first instalment in the Office of the Registrar of Co-operative Societies and expressed his willingness to deposit any further amount that may be due towards that instalment. The Nazim's office stated in reply that as he had committed default in the payment of the first instalment the whole decree had become due and the amount of Rs. 1000 could not be accepted. Subsequently, however, on 5th Dai 1353F. a letter was issued by one Mohammed S. N. Naik, Assistant Madadgar Nazim, to the civil Court, Balda, saying that Rs. 1034 had been deposited in the Office of the Nizamat Co-operative Credit Societies and therefore the proceedings in execution should be stayed or adjourned. On receipt of the latter in the civil Court, the decree-holder raised on objection that the Registrar had no jurisdiction to stay execution of the decree as he was not an executing Court. This objection was overruled by the Court and it was held that under the provisions of S. 42, Co-operative Credit Societies Act the Registrar retained the power of staying execution of the award decree even after the issue of a certificate by him. In the result the execution proceedings were stayed. Against this order an appeal was taken to the Sadar Adalat. The Sadar Adalat allowed the appeal partially and held that to the extent of the payment made the decree could not be executed but it could be executed with respect to future instalments as and when they would fall due. It further found that the default clause in the decree must be taken to have been condoned by the deposit of the first instalment in the office of the Registrar. The decree-holder preferred a second appeal to the High Court but without any material success. The High Court held that there had been a default in the payment of the first instalment and the decree-holder had thus a right to execute the whole decree and that neither the Registrar nor the executing Court could deprive the decree holder of that right. In spite of this finding it took the view that the Registrar still retained jurisdiction to adjourn execution proceedings. The contention of the judgment-debtor that the certificate was bad as having been issued by a Madadgar Nazim was negatived. It was held that the Madadgar Nazim bad delegated powers in this respect and that the defect, if any, stood cured by a fresh certificate signed by the Nazim himself The result was that with these findings the decision of the executing Court adjourning the execution proceedings was maintained.

(3.) The first point for consideration in this appeal is as regards the jurisdiction of the Registrar functioning under the Co operative Credit Societies Act in respect to execution of decrees. The decision of this question depends on the interpretation to be placed on the language employed in S. 42, Cl. (d), Co-operative Credit Societies Act, 1340 F. as amended. This section is in these terms: