BHIMSEN HANMANT Vs. URBAN BANK

JUDGEMENT

(1.) THIS appeal arises in execution proceedings and raises one short question of law under Section 59 (1) (a) of the Bombay Co-operative Societies Act (Bom. VII of 1925 ). The Urban Bank at Muddebihal obtained an award against the appellant and five other persons under Section 54 of the Societies Act. A dispute having arisen between the bank and the said persons it was referred for decision to a nominee of the Registrar, and the award in question was passed by him on September 21, 1930. Under the award the debtors were directed to pay Rs. 451-3-0 with future interest at 121/2 per cent. per year on Rs. 270. Under Section 59 (1) (a) a certificate was issued by the Registrar on October 25, 1930, and the bank put the said award into execution by filing darkhast No.196 of 1932 in the Court of the Civil Judge (Junior Division) at Muddebihal. THIS darkhast was filed on February 19, 1932, but since no steps were taken by the bank to pay the requisite process fee for the warrant ordered to be issued for the recovery of the amount, it was dismissed for want of prosecution on September 11, 1933. Thereafter the present darkhast was filed by the bank (No.955 of 1934) in the same Court on September 18, 1934. The appellant: resisted the bank's claim to recover the amount in question mainly on the ground that the darkhast filed by the bank was barred by limitation. It was urged on his behalf that a darkhast by which an award made under Section 54 of the Societies Act is sought to be executed is governed not by Article 182 of Schedule 1 of the Indian Limitation Act, but by Article 181 of the said schedule. It was further contended on his behalf that the proceedings taken by the bank in the earlier darkhast of 1932 cannot assist the bank, since under Article 181 there is no question of keeping the decree alive for execution by taking any steps in aid of execution. Both the Courts below rejected the appellant's contention and held that the proper article to apply to the present execution proceedings is Article 182. On that view of the matter under Article 182 (5) it was held that the previous darkhast was a step-in-aid of execution and that the present darkhast having been filed within three years from the date of the final order passed in the previous darkhast, the decree-holder's claim to execute the award was in time. Section 59 (1) (a) of the Societies Act provides inter alia that every order passed by the Registrar or his nominee tinder Section 54 of the said Act shall, if not carried out, be executed on a certificate signed by the Registrar by any civil Court in the same manner as a decree of such. Court. Subsequent to the decision of the learned District Judge in this appeal Section 59 (1) (a) has been amended in 1943 by Act XVI of 1943. The amended section reads thus : (1) Every order passed by. . . the Registrar or his nominee. . . under Section 54.. . shall, if not carried out, (a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court;. . . . For the appellant it has been urged before us that the amended section cannot be held to be retrospective and that the question arising between the parties in the present appeal must be decided under Section 59 as it stood before the amendment. I will deal with this argument later. In the first instance I propose to consider the question by reference to the section as it stood before the amendment.

(2.) IT has been conceded on behalf of the bank that an application made by the bank to execute an award passed in its favour after obtaining the necessary certificate from the Registrar under Section 59 (1) (a) is governed by the provisions of the Indian Limitation Act. IT is also not disputed before us that if Article 182 applies to the present application, the darkhast is in time. Similarly, if Article 181 applies, the present darkhast would be beyond time. That is how the short-question which arises for decision in the present appeal is which of the two Articles 181 and 182 of the Indian Limitation Act applies to an application made to execute an award under Section 59 (2) (a) of the Societies Act.

(3.) IN Maratha Co-operative Credit Bank, Dharwar v. Keshav (1937) 40 Bom. L. R. 889 the same question arose before a Bench of which Mr. Justice N. J. "wadia was a member. An application to execute an award had been made under the provisions of Section 59 (1) (a) of the Societies Act and it had been dismissed by both the Courts below on the ground that it was barred by limitation. On behalf of the bank two points were urged before the Court in the said case. The first contention urged was that having regard to the provisions of the Bombay Co-operative Societies Act an award made under the provisions of that Act is not governed by or subject to the provisions of the INdian Limitation Act, and, secondly, it was contended that the application to execute the award in question was within time in view of the fact that the bank had taken some steps under Section 59 (1) (b) of the Societies Act between March 1927 and July 1931, which steps amounted to steps-in-aid of execution within the meaning of Article 182 (5 ). Mr, Justice Rangnekar, who delivered the judgment of the Court, repelled the first contention by observing that if the said contention was accepted, it "would obviously lead to some absurd results", Curiously enough the contention that the provisions of the Limitation Act do not apply to an application made to execute an award under Section 59 (1) (a) of the Societies Act was sought to be supported by reference to the decision of this Court in Raghavendra's case. Mr. Justice Rangnekar held that the said decision did not support that contention at all. Dealing with the second contention urged before them Mr. Justice Rangnekar held that the steps taken by the bank to execute the decree under Section 59 (1) (b) with the assistance of the Collector could not help to bring their present application for execution in time since under Article 182 (5) the Collector could not be said to be the proper Court for execution. Article 182 (5) requires that before any application could be treated as a step-in-aid of execution it must be shown that it was made in accordance with law to the proper Court for execution. According to Rangnekar J. the Collector to whom the application was made could not be regarded as such a Court. On that view it was held that the darkhast filed by the bank was beyond time.