SHIVAJI Vs. VAIJNATH

JUDGEMENT

(1.) This is an appeal by defendants 6, 7 and 8 who were respondents 6, 7 and 8 in RA 73 of 1974 on the file of the Court of the Civil Judge, Bidar, against the order of remand made in the said appeal.

(2.) On the claim made by the 5th respondent Co-operatire Society, an award for payment of a certain sum of money was passed against Deft-5, Sadhuram. That award was put into execution before the Registrar of Co-operative Societies who sent the same to the Asst Registrar of Co-op Societies Bidar. The Asst Registrar of Co-op Societies sold the property in a public auction in which the property of the judgment-debtors was purchased by the plaintiff Vaijnath, who is Respt-1 in the above appeal and a Sale Certificate was issued in his favour. It was open to the purchaser to apply to the Registrar of Co-op Societies to put him in possesmen of the property covered by the Sale Certificate as provided by Section WB(2) of the Co-op Societies Act. 1959 read with Rule 38A(8) (b) of the Rules made thereunder. He did not choose to make an application for delivery of the property to the Registrar of Co-op Societies for reasons not krown to this Court. However, he brought a suit OS. 185 of 1972 on the file of the Court of the Munsiff, Basavakalvan, for delivery of the property. That suit was resisted on several grounds. The trial Court dismissed the suit. On appeal to the Court of the Civil Judge, Bidar, the decree of the trial Court was set aside and the case was remanded with a direction that the suit should be treated as an execution petition and all the contentions of the judgment-debtors should he decided in such execution petition. It Is against the said order that this appeal has been preferred.

(3.) The view of the Court below that the Suit for possession by the purchaser in execution of the award of the Registrar of Co-op Societies is not maintainable and that the remedy of the purchaser is to file an execution petition before the Civil Court is patently erroneous. The law is now settled that a purchaser in execution sale conducted by the Civil Court mav anproach the Executing Court for delivery of possession under Order XXI, Rule 95 of the CPC, or, he may institute a suit for possession. Both remedies are concurrent when the purchaser is a "third party or a stranger-purchaser as he is called. An award made under the Co-op Societies Act can be executed through Civil Court. It is also open to the Registrar to execute such award. There is no provision in the Co-op Societies Act restricting the remedy of a stranger-purchaser to make an Application to the Registrar for deliverv under Rule 38A. I am clearly of the opinion that the ground on which the learned Civil Judge has remanded the matter is wholly untenable.