SANJIT KUMAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order passed by the Assistant Registrar, Co -operative Societies, Anandapur Circle, dated 26 -2 -1994, annexed as Annexure -3, and the order dated 7 -3 -1994 passed by the same authority are being assailed in this writ application, inter alia, on the ground that the said Assistant Registrar had no jurisdiction to entertain the application filed by opposite party No. 4 and to pass the impugned orders in question. o

(2.) THE short facts necessary for adjudicating the dispute in question may be stated as hereunder. Opposite party No. 4 had taken a loan from opposite party No. 3, the Keonjhar District Co -operative Transporting Society Limited, for purchase of a vehicle and after purchasing the vehicle bearing registration number ORJ 4317 hypothecated the same in favour of opposite party No. 3. As opposite party No. 4 : failed to pay up the dues in question, opposite party No. 3 raised a Dispute before the Assistant Registrar, Co -operative Societies, Keonjhar, in the year 1981 and ultimately an award was passed in favour of opposite party No. 3 for a sum of Rs. 24,972 .72 paise. After obtaining the award, opposite party No. 3 levied execution in the Court of the Assistant Registrar at Keonjhar, on 18 -1 -1932, which was registered as Execution Proceeding No. 466 of 1982. As the vehicle in question after being involved in an accident had been kept in a garage at Anandapur and. therefore, was beyond the jurisdiction of the Assistant Registrar at Keonjhar, the executing. Court at Keonjhar transferred the decree to the Assistant Registrar, Co -operative Societies, Anandapur Circle, Anandapur, for execution of the same. It transpires from the records produced before us that the exciting Court at Anandapur returned the decree again to the Court at Keonjhar. on 5 -6 -1984. but the Court at Keonjhar re -transferred the same to the Court at Anandapur on 19 -8 -1991. While the execution proceeding was pending before the executing Court at Anandapur namely the Assistant Registrar, Co -operative Societies at Anandapur, the decree -holder himself seized the vehicle in question in purported exercise of power under Clause 12 of the Agreement between the loaner and the Society and sold the vehicle to the present petitioner on 21 -3 -1992 The said decree -holder also intimated the factor of sale and realisation of the decrial dues to the executing Court at Anandapur on 12 -11 -1993. Prior to the aforesaid intimation given by opposite party No. 3 to the executing Court, the judgment -debtor coming to know about the alleged illegal sale made by opposite party No. 3 in favour of the petitioner filed an application on 3 -11 -1993 before the executing Court at Anandapur. As no orders were passed on that application and the matter was kept pending, he approached this Court in OJC No. 9428 of 1993 and that application was disposed of at the admission stage by order dated 25 -1 -1994 calling upon the appropriate authority to dispose of the matter. Thereafter the executing Court at Anandapur passed an order under Annexure -3 on 26 -2 -1994 and then the order under Annexure -4 on 7 -3 -1994. By the order under Annexure -3,the said executing Court at Anandapur directed that the vehicle bearing registration number ORJ 4317 be kept in the custody of Officer -in -charge of Anandapur Police Station and be produced whenever needed and the Sale Officer appointed in the S.P. case was directed to take the help of Officer -in -charge of Anandapur/Nandipada Police Station to seize the vehicle. By order dated 7r3 -1994,annexed as Annexure -4,the said Assistant Registrar passed the final order on the application filed by opposite party No. 4 directing the Sale Officer to release the vehicle in favour of said opposite party No. 4, if he pays the decrial amount with interest with a further direction to opposite party No. 4 that he will produce the vehicle as and when desired by the Court of the Assistant Registrar, Co -operatives Societies, Anandapur.

(3.) IN view of the rival submissions made at the Bar, the only Question that arises for our consideration is whether the decree -holder is entitled to give an intimation to the executing Court with regard to the satisfaction of the decree in question and if the decree holder gives such an -, intimation then is the executing Court emitted to go into any other question. in that respect? This question is required to be answered since according to Dr. Panda for opposite party No. 4, art application of the nature filed by opposite party No. 4 could be entertained by the executing Court and could be disposed of in accordance with law. There is no dispute that the Society (opposite party No. 3) had raised a dispute before the Assistant Registrar at Keonjhar and having obtained an award had levied execution before the said authority at Keonjhar and because the vehicle in question was lying beyond the jurisdiction of the said Assistant Registrar, the decree had been trans - furred to the Court at Anandapur in accordance with the Sub -rule (2) of Rule 98 of the Orissa Cooperative Societies Rules. In course of arguments, Or. Panda appearing for opposite party No. 4 places before us the provisions of Sections 102, 103 and 105 as well as Rule 25 of the Orissa Co -operative Societies Rules in support of his contention that tie executing Court will retain jurisdiction to entertain the application of opposite party No. 4 and pass appropriate orders thereon. But on examining these provisions, we are satisfied that none of these provisions confer any power on the executing Court to entertain the application of opposite party No. 4 and to pass any orders thereon, after the decree -holder intimated the executing Court that the decree has been satisfied by taking recourse to the sale of the vehicle in question and realising the decrial dues thereon. It is the legality of the sale conducted by the decree -holder which is now in dispute and, therefore, the executing Court to which the decree had been transferred for execution of the same will not be entitled to entertain the same in course of an execution proceeding. On the other hand, the executing Court is duty bound to close the execution proceeding on a conclusion that the decree has already been satisfied, as intimated by the decree -holder We are also unable to accept the submission of Mr. Routray, learned Additional Government Advocate that the application could be treated as a dispute Under Section 68 of the Orissa Co -operative Societies Act as in that event, it would be the Assistant Registrar, Co -operative Societies, at Keonjhar, who could entertain a dispute, if at all the legality of the sale conducted by the decree -holder can be a dispute within the ambit of Section 68, but by no stretch of imagination the transferee executing Court can entertain the application and treat the same as a dispute Under Section 68 and pass any orders thereon. In this view of the matter, we have no hesitation to come to the conclusion that the impugned orders under Annexures -3 and 4 are wholly without jurisdiction and we accordingly quash the same It is open for opposite party No. 4 to approach the appropriate forum for any relief to which he is otherwise entitled under law and challenge the so called illegal action of the decree holder Society in putting the vehicle to sale.