CENTRAL CO-OPERATIVE BANK LTD Vs. DASRATH PANDEY

JUDGEMENT

(1.) This appeal by the defendant is from a decision of the Subordinate Judge of Patna confirming a decision of the Munsif of Barh. The appeal arises out of a suit for a declaration that an auction sale at which the defendant purchased the property of the plaintiff was a nullity and for confirmation of the plaintiff's possession over the property that was the subject-matter of the sale or in the alternative for recovery of possession of that property if it should be fouad that defendant was in possession. The facts giving rise to the litigation ware that the defendant Bank (the Barh Central Co-operative Bank, Ltd.) obtained an award on 17 August 1928 against the Maranchi Partabpur Co-operative Society. Under the Co-operative Societies Act this award had the force of a decree. The decree-holder, that is to say the Bank, applied for execution of the award in the Court of the Subordinate Judge of Patna. The particular manner in which the decree-holder sought to execute the award was by attachment and sale of the property of individual members of the Maranohi Partabpur Cooperative Society, Dasrath pahdey, the plaintiff (a member of the Society), objected to the execution, on amongst other grounds, that the Court had no jurisdiction to sell the property of individual members of the Society in execution of a decree against the Society, and also disputed the amount claimed, alleging that a sum of Rs. 474-8-0 had been claimed in excess of what was due.

(2.) After this objection had been raised, a petition was filed in the executing Court signed by Dasrath Pandey, one of the persons against whom it was proposed to proceed in the execution, and the manager of the Barh Central Co-operative Bank Ltd., which was the decree-holder. This petition stated that the judgment-debtor had withdrawn all objections to the execution and that the Bank had agreed to remit Rupees 474-8-0 and to allow the judgment-debtor a month's time for payment of the balance. The petition then went on: There is no need of issuing a fresh sale proclamation and your petitioner, the judgment-debtor, will not object on the ground of any irregularity. There was no payment by the judgment-debtor either in December or at any other time, with the result that the property was put up to sale and purchased by the decree-holder. This sale was confirmed in January 1930. On 26 June 1931, this Court, in another case, namely in Harihar Prasad V/s. Bansi Missir AIR (1981) Pat 321, decided that the property of individual members of a co-operative society was not liable to be sold in exeoution of a decree against the society.

(3.) In 1937 the present suit was instituted by Dasrath Pandey for the reliefs stated above. The Courts below have agreed in decreeing the plaintiff's suit, holding that the Subordinate Judge of Patna had no jurisdiction to sell the property of the plaintiff in execution of the decree against the Maranchi Partabpur Co- operative Society. The first question that arises in this appeal is whether the execution sale is a nullity by reason of the absence of jurisdiction in the Subordinate Judge of Patna to sell the plaintiff's property. The decision of the Court below, in my opinion, proceeds on "a confusion between the existence of jurisdiction and the exercise of jurisdiction. "Jurisdiction" as was pointed out by West J. in Amritrav Krishna V/s. Balkrlshna Ganesh (1887) 11 Bom 488 . consists in taking cognizance of a case involving the determination of some jural relation, in ascertaining the essential points of it and in pronouncing upon it. An inquiry into whether the jurisdiction exists is not an exercise of jurisdiction over the case itself, but an investigation of another question altogether, that of whether the conditions of cognizance are satisfied.