BALAKRISHNA MENON Vs. RECTIFICATION OFFICER

JUDGEMENT

(1.) Second appeal No. 555 of 1S77 arises out of O. S. No, 526 of 1968 and Second Appeal No. 556 of 1977 arises out of O. S. No. 9 of 1971 on the file of the Munsiff's Court, Alathur. Both the Second Appeals are by the repective plaintiffs in the two suits. Both the suits are two set aside the orders rejecting the claim petitions submitted by the plaintiffs against the attachment of properties effected by orders of the Deputy Registrar of Co-operative Societies, Palgbat. The orders of attachment are produced as Exts. B 2, B 4 and B 7. Attachment was effected before awards in arbitration proceedings under S. 69 of the Kerala Co-operative Societies Act pending before the Deputy Registrar of Co-operative Societies, Palghat. Ext. B 8 dated 20-7-1970 is the order of the Sale Officer, the 2nd defendant rejecting the plaintiff's claim against the attachment of properties involved in O. S. No 9/71. There was similar order rejecting the claim of the plaintiff in O. S. No. 526/ 68 against the attachment of properties involved in that suit. The two arbitration cases were filed by the 1st defendant the Rectification Officer of the Wadakkancherry Co-operative Service Bank (a society registered under the Co-operative Societies Act) on its behalf before the Deputy Registrar of Co-operative Societies, Palghat, for realisation of amounts alleged to have been misappropriated by the 3rd defendant, the erstwhile Secretary of the Bank. Pending the arbitration proceedings the Deputy Registrar effected conditional attachment of the properties involved in both the suits as per his orders Exts. B 2 and B 4 in Arbitration Case No. 549 of 1968 and Ext. B 7 in Arbitration Case No. 6470 of 1968, According to the plaintiff in both the suits, the properties attached belong to the tavazhi tarwad of the plaintiffs, and defendants 3 to 4 in O. S. No. 526 of 1968 and defendants 3 to 16 in O. S. 9/1971. The suits are contested by defendants 1 and 2 the Rectification Officer and the sale Officer of the Co operative Department. The trial court dismissed the suits on the ground that the Service Bank on whose behalf the 1st defendant had filed the arbitration cases is not impleaded in these suits and also on the ground that the civil court has no jurisdiction to entertain the suits to set aside the claim orders passed by the Deputy Registrar in the two arbitration cases before him. The trial Court however considered the case on merits and found that some of the items attached belong to the tavazhi tarwad of the plaintiffs and defendants 3 onwards. The lower appellate court has confirmed the decision of the trial court upholding the dismissal of the suits on the preliminary points mentioned above. In the view that it took the appellate court has not considered the case on merits.

(2.) The lerned counsel for the appellant submits that the two grounds on which the suits had been dismissed by both the courts below are unsustainable in law. The first question urged is that the suit is not bad for the non-impleadment of the Wadakkancherry Co-operative Service Bank as is wongly held by the courts below. The learned Counsel relies on Ext. B 1 award and the conditional orders of attachment produced in the case. The award Ext. B 1 dated 28-11-1968 in Arbitration Case No. 5749 of 1968 and the conditional orders of attachment in the. two cases marked as Exts. B 2 B 4 and B 7 show that the two arbitration cases were instituted by the 1st defendant the Rectification Officer against the third defendant the erstwhile Secretary of the Bank. Ext. B 1 award shows that the plaintiff in arbitration case No. 5749 of 1968 is " The Rectification Officer F. 1219 Wadakkancberry Services Co-operative Bank. " The Conditional order of attachment Ext. B 7 in Arbitration Case No. 6470 of l988 shows that the plaintiff in that case is also the Rectification Officer of the Service Bank aforesaid. The 1st defendant in both the suits is the plaintiff in the two arbitration cases before the Deputy Registrar. It is on the application of the 1st defendant in these suits that the Deputy Registrar passed conditional orders of attachment of the properlies involved in the two su ts. The Rectification Officer representing the Service Bank had filed the plaints in the two arbitration cases before the Deputy Registrar. It cannot therefore be said that the suits are defective for the non impleadment of the bank itself as the person who had filed the arbitration cases on behalf of and representing the Bank is impleaded in both the suits as the 1st defendant. His capacity to represent the bank cannot also be disputed in these suits for the reason that it was in the arbitration proceedings instituted by the Rectification Officer, there were the conditional orders of attachment passed by the Deputy Registrar. In paragraph 3 of the written statement in O. S. No. 9/71 the 1st defendant has clearly admitted that he is the administrator of the Wadakkancherry Co operative Service Bank. Apparently, the Committee of the Service Bank had been superseded and the Rectification Officer had been appointed as the Administrator under the Co-operative Societies Act. In either view of the matter the 1st defendant represents the Co-operative Service Bank, and as the plaintiff in the two arbitration cases who had obtained the conditional orders of attachinent had been impleaded it is not correct to say that the suit is defective for the non-impleadment of the Bank represented by the 1st defendant. The courts below are therefore wrong in dismissing the suits on the ground that the Wadakkancherry Co-opeeativc Service Bank as such had not been impleaded as a party to the suit. The plaintiffs in both the suits had filed applications to implead the Bank as additional respondent in the appeals before the lower appellate court. These applications were allowed and the Bank had been impleaded as an additional respondent in both the appeals.

(3.) Both the courts below are also wrong in holding that the civil court has no jurisdiction to entertain these suits. under S. 9 of the Code of Civil Procedure the civil courts shall have jurisdiction to try all suits of a civil nature unless the jurisdiction of the civil court is barred expressly or by necessary implication. Clause (c) of S. 76 of the Kerala Co-operative Societies Act provides for the execution of awards under S. 70 of the Act by the Registrar or any person empowered by him by attachment and sale or sale without attachment of any property of the person against whom the award had been passed. S. 78 of the Act provides for attachment of property before an award is passed undec S. 70 of the Act. Rule 93 of the Co-operative Societies Rules states that every attachment of property under S. 78 shall be in the same manner as provided for in the Rules for attachment of properties in execution of awards and a claim preferred to the property attached under sub rule (1) of Rule 93 shall be investigated in the manner provided for in Rule 90 for attacnment of properties in execution of awards under the Act. Rule 90 provides for investigation of claims and objections to attachment of property, and sub-rule (3) specifically provides for a suit to establish the rights of the claimant against whom an order is made in respect of the property attached. Sub rule (3) requires a suit to be filed within six months after the order rejecting the claim had been passed. Both the suits in the present case had been filed within six months after the order rejecting the claim against attachment had been passed by the Deputy Registrar. The courts below are wrong in holding that sub-rule (3) of Rule 90 applies only to cases relating to the rejection of claims against attachment in execution of awards. By virtue of the provisions of Rule 93, the provision of sub-rule ( ) of Rule 90 apply also in respect of claims against conditional orders of aEtachment before an award is passed under S. 70 of the Act.