KUDRATULLA SARKAR Vs. UPENDRA KUMAR CHOWDHURY

JUDGEMENT

(1.) This is an appeal in execution proceedings by the heirs of the judgment-debtors. The suit in which the decree was obtained was a suit against a. Co-operative Loan Society with unlimited liability and against the Secretary, the chairman and two members who signed the bond in respect of the money lent by the plaintiff in the suit. The suit was, I think, clearly wrongly constituted as the Co-operative Society alone should have been sued. But the suit was decreed in part and, I think it is clear from the decree and the plaint that the only possible construction that we can put upon the decree is that it was a decree not only as against the Co-operative Society but against the chairman, who, as already stated was one of the defendants, personally and his heirs who are the appellants before us. Although, I think, the suit was wrongly framed it is not possible for us in execution to set aside the decree that was passed against the chairman-defendant. For some reason or other no appeal was preferred against the decree and that decree accordingly stands, and I think it is impossible for us to construe the decree as we are asked to construe it as merely a decree against the Co-operative Society and as regards the other defendants as merely indicative of their ultimate liability under the provisions of the Act. The first point, I think, accordingly fails and we are bound to hold that the decree-holder is entitled to execute the decree against the heirs of the chairman-defendant.

(2.) So far as the second point is concerned under the provisions of Section 24 of the Cooperative Society Act (Act II of 1912), it is provided that the estate of a deceased member shall be liable for a period of one year from the time of his decease for the debts of the Society as they existed at the time of his decease. I think the Courts below quite rightly construed Section 24 as only coming into operation in liquidation proceedings under Section 42. Section 35 and the following sections provide that if the lender has not been paid he may obtain an enquiry by the Registrar who in certain events has the power to order dissolution of the Society under the provisions of Section 39, and it is only after the dissolution has been directed under Section 39 that the liability of the members under the provisions of Section 42, in my opinion, arises and the provisions of Section 24, are, as I have already stated, only operative if there has been liquidation of the registered society. I think, therefore, the present appellants cannot call in aid the provisions of Section 24 as an answer to the claim of the decree-holder to execute the decree.

(3.) For the reasons stated, therefore, the appeal fails and must be dismissed with costs.