OM PRAKASH SHARMA Vs. DISTRICT CO

JUDGEMENT

(1.) These are two connected civil revisions arising out of the execution proceedings. , The relevant facts may be stated as under :

(2.) The opposite-party filed a suit against the revisionist for the recovery of Rs. 61,794 on the allegations that he, as Manager and Karta of the Joint family firm M/s. Nanak Chanel Om Prakash used to deal with the plaintiff Bank and in that connection used to receive money from the various co-operative societies on behalf of the bank. It was alleged that the defendant did hot account for the plaintiffs money and ultimately a sum of Rs. 1,53,216-8-3 became due against him. The defendant was prosecuted under Sec. 409, I.P.C. but he was acquitted on 30-8-1955 due to some technical snag. In the meanwhile the plaintiff also tried to refer the matter to arbitration under the Co-operative Societies Act, but the revisionist and his brothers filed suit No. 364 of 1954 and got the arbitration proceedings stayed. When pressed hard to pay the amount, the defendant petitioner executed a mortgage deed on 11-6-1953 in favour of the Bank mortgaging, his property to the extent of Rs. 80,000 Towards the balance amount of Rs. 73,171-8-3, the defendant only paid Rs. 19,171-8-3, thus, leaving a balance of Rs. 54,000 besides interest. This amount also swelled to Rs. 61,794 when suit No. 92 of 1952 was filed for its recovery. In this suit, a compromise was filed on 1-2-1957 which was also signed by all the other family members of the defendant and a decree in terms of compromise followed. On the basis of the mortgage dated 11-6-1953, which was executed for Rs. 80,000 also another suit No. 86 of 56 was filed which w as decreed in due course. Both these decrees were put into execution and in both of them the petitioner filed similar objections purporting to be under Order 21, Rule 66, C.P.C. read with Sec. 47, C.P.C. in which the main ground was that the decree was totally jurisdiction as he happened to be a member of the plaintiffs society and under the provisions of Co-operative Societies Act, no suit would lie against him as the dispute could only be referred to arbitration. It was, therefore, urged that since the decree was totally without jurisdiction and a mullite the same could not be executed. The second ground of objection was that the decree was actually passed by the Additional Civil Judge, while the execution application was filed in the Court of Civil Judge, without obtaining any certificate of transfer from the Court of Additional Civil Judge. It is urged that in view of Sec. 38 C.P.C. the Court of First Additional Civil Judge had no jurisdiction to execute the decree. Both these, objections have been rejected by the Court below. Aggrieved, the defendant objector has filed these revisions and the same grounds have been urged before me also.

(3.) Since the matter relates to 1956 when the suit was filed we must necessary refer to the relevant provisions of the old Co-operative Societies Act. Sec. 43 of the old Act provides for the powers of the Government to frame There is no provisions similar to that of Sec. 70 of the Co-operative Societies Act, 1965 in the old Act. Sec. 43 of the old Act provides for the powers of the Government to fraise rules under the Co-operative Societies Act for certain given purposes. One of these purposes is to rules regarding arbitration proceedings under which rule 115 had been framed. There is no provision in any of the rules or in any Sec. of the old Co-operative Societies Act which may completely prohibit the filing of the suit in the Civil Court in regard to any matter which could be referred to arbitration under the Co-operative Societies Act. Even if the petitioner was a member of the plaintiffs society, it was not incumbent for the bank to refer any dispute with the petitioner to arbitration and, thus, filing of suit for the recovery of the money in a Civil Court was not barred. In view of Sec. 9, C.P.C. the bar of Jurisdiction of the Civil Court cannot be readily inferred unless it was either expressly or impliedly barred under any law (see A.I.R. 1976 Allahabad 349). Since I do not find any specific provision in the Act ousting jurisdiction of the Civil Court to entertain such a matter, the submission made on behalf of the petitioner cannot be accepted and I hold the Civil Court which passed the decree did not suffer from want of jurisdiction.