PADMANABHA BHATTA Vs. PAKIRA RAI

JUDGEMENT

(1.) This Civil Revision Petition is against an order of the learned District Munsiff of Kasaragod returning an execution petition for presentation to the court which passed the decree for the recognition of the assignment in favour of the first petitioner herein by the original decree holder who is the second petitioner, before proceedings in execution could be started by the executing court. There was an award by the Deputy Registrar of Cooperative Societies, Kasaragod under S.51 of the Madras Cooperative Societies Act which was later on transmitted to the District Munsiffs Court, Kasaragod, for execution. In the meantime the award was assigned by the original decree holder in favour of another person. This assignee and the assignor together filed the execution petition before the lower court and the lower court has returned the petition as stated above, directing the petitioners to get the assignment by the second petitioner in favour of the first petitioner recognised by the court which passed the decree. The petitioners in the execution petition have filed this revision and the respondents are unrepresented before me.

(2.) The only question that has to be decided in this Civil Revision Petition is whether the order of the lower court returning the execution petition is correct, that is, whether the assignment has to be initially got recognised by the Deputy Registrar, who passed the award. This incidentally involves a consideration whether the Deputy Registrar has that power or whether the executing court has itself got that power. As I have already stated the award or the decree that is sought to be executed was passed under S.51 of the Madras Cooperative Societies Act. The Rules framed under the said Act prescribe three modes of enforcing the award and one such method is by execution by a Civil Court after transmission of the decree to it. The relevant rule lays down that in such a case the Civil Court is to enforce the award or decree as if it were a final decree of that Court itself. Therefore it is clear that the award or decree after its transmission to the Civil Court assumes the position of a decree passed by that Court itself or, to put it more aptly, that the executing court assumes the position of the court that passed the decree or award. The effect of this provision is that the transferee-Civil Court is placed in the position of the court that passed the decree or the award. Consequently, under the powers which the Civil Court has under O.21, R.16 of the Code of Civil Procedure, it gets jurisdiction to recognise an assignment of the decree. Therefore it is clear that in a case where the decree or the award has been transmitted to a Civil Court, such Civil Court has the power and jurisdiction to recognise the assignment of the decree or the award.

(3.) It will be instructive to examine the provisions of the Madras Cooperative Societies Act and the Rules made thereunder to see whether the Deputy Registrar has got the power to recognise the assignment of a decree or award passed by him. The Act and the Rules indicate that the Deputy Registrar can, for certain purposes, be a Court. But he can exercise only such powers as are given to him under the Act and the Rules. The Act and the Rules do not provide for the recognition by the Deputy Registrar of the assignment of the decree. This naturally raises another question, i. e., that, in a case where the Deputy Registrar himself is enforcing the award or decree, whether in such a case at least he can recognise the assignment and proceed with the execution. That probably he can, in a case where he himself enforces the decree, because the power of recognising the assignment in such a case is only incidental to his power to execute the decree. But where the award or decree has been transmitted to a Civil Court, in such a case the Deputy Registrar does not have any power of recognising the assignment, whatever might be the position in a case where the execution of the decree is proceeded with by the Deputy Registrar himself. This view finds support in a decision of Wadsworth, J., of the Madras High Court in Kannappa Mudali and another v. Varadachariar ( AIR 1940 Mad. 38 ).