GAJULA ABDUL JABBAR Vs. RAYACHOTY CO OPERATIVE SOCIETY

JUDGEMENT

(1.) The appellant who is the defendant in O. S. No. 161 of 1966 District Munsifs Court, Nandalur, became indebted to the plaintiff which is a Co-operative Society. There was an award for Rs. 1256-06 by the Deputy Registrar of Co-operative Societies, Cuddapah on 13-7-53. The Society enforced the said award by bringing the appellants property to sale in E. P. No. 278 of 1953-54 and the property was purchased by the Society itself and a sale certificate was duly granted in favour of the plaintiff on 3-6-1956. The appellant, however, did not deliver possession and therefore the Society filed several Execution Applications for the delivery of the suit property through Court. In the first E. A. No. 346 of 1959 delivery was ordered, but the petition was dismissed on the ground that the decree-holder was away form town. E. A. No. 682 of 1961 was dismissed, as batta was not paid in time. E.A. No. 290 of 1962 was dismissed on the ground that the application was barred by limitation under Article 181 of the Limitation Act. After the dismissal of the last execution petition, the Society filed the suit, O. S. No. 161 of 1966 before the District Munsifs Court, Nandalur, for recovery of possession of the property.

(2.) The main contention of the defendant was that the suit was not maintainable. This contention was accepted by the learned District Munsif who dismissed the suit with costs. On appeal by the plaintiff, the lower appellate Court took a different view and held that the suit was maintainble. The decree of the trial Court was set aside and the appeal was allowed with costs throughout. The defendant has preferred the appeal to this Court.

(3.) The principal contention reiterated before us by Mr. Subrahmanyam on behalf of the appellant is that the suit is not maintainable in views of Section 47 of the Code of Civil procedure. His contention is that the only remedy of the Society, which is in the position of a decree-holder purchaser, when an obstruction is caused by the judgment-debtor, is to file an execution petition and no suit lies to recover possession of the property. In order to appreciate this contention, it is necessary to refer to the relevant provisions of the Co-operative Societies Act. As the award is of the year 1953, both the Advocates stated before us that the case is governed by the Andhra Pradesh (Andhra Area) Co-operative Societies Act of 1932 and not by the new Act, viz., the Andhra Pradesh Co-operative Societies Act, 1964, Section 51 of the old Act provides for the decision of any dispute by the Registrar, Section 57-A provides: "The Registrar or any person subordinate to him empowered by the Registrar in this behalf may subject to such rules as May be prescribed by the State Government and without prejudice to any other mode of recovery produced by or under this Act recover--- "(a) any amount due under a decree or order of a Civil Court, ad decision or an award of the Registrar or arbitrator, or an order of the Registrar, obtained by a registered society including a financial bank or liquidator. (b)xxxx (c)xxxx (d)xxxx" It is well settled that under Section 9 of the Code of Civil Procedure a person has a right to resort to a Civil Court by means of a suit unless such a suit is barred expressly or by necessary implication. the contention of the appellant is that the enforcement of the award is a process in execution of a decree and Section 47, C. P.C. applies and therefore the suit is barred. No section of the Act or any rule was brought to our notice which states that Section 47, C. P. c. is applicable to any proceeding to enforce an award. There is no provision in the Act or in the rules which says that to generally the provisions of the Civil Procedure Code are applicable to proceedings taken under this Act, nor is there any provision which says that an award obtained under Section 151 of the Act is executable as if its were a decree of court. In these circumstances, it is not possible to accept the argument that an award is in the nature of a decree, that proceedings to enforce the award are in the nature of execution proceedings and Section 47 is applicable to such proceedings. We have, therefore, no hesitation in rejecting the contention that the suit is barred by reason of Section 47, C. P. C.