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 Sec. 54 of the Societies Act is sought to be executed is governed not by Art. 182 of Schedule 1 of the Indian Limitation Act, but by Art. 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 Art. 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 Art. 182. On that view of the matter under Art. 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 Art. 182 applies to the present application, the darkhast is in time. Similarly, if Art. 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 support of his contention that Art. 181 applies to such an application the appellant has strongly relied upon a decision of a Division Bench of this Court in The Hubli Urban Co- operative Society V/s. Gururao Bodhrao Bengeri. (1935) Letters Patent Appeal No. 5 of 1933 (in S.A. No. 301 of 1931) decided by Beaumont C.J. and N.J. Wadia J., on January 30, 1935 (Unrep.) The question which arose before the Division Bench in the said Letters Patent Appeal was similar to the question with which we are dealing. An application had been made in the said case by the Hubli Urban Co-operative Society to execute an award made in its favour and its application was resisted by the debtor on the ground that the said application was barred under Art. 181 of Schedule I of the Indian Limitation Act. In Second Appeal No. 301 of 1931 Mr. Justice Baker had held that the claim made by the society to enforce the award passed under Section 54 of the Act fell within the purview of Art. 181 since the award could not be said to be an order or decree of any civil Court as required by Art. 182. On that view Mr. Justice Baker had dismissed the appeal preferred by the Society. Against the said judgment the Society preferred the Letters Patent Appeal in question. While arguing the said Letters Patent Appeal before Beaumont C.J. and N.J. Wadia J. it was conceded on behalf of the society that if the award in question is not held to be an order of a civil Court, then Art. 181 would apply and the appellant's darkhast would be barred. Proceeding to deal with the matter on that concession, the only question which arose for decision was whether in terms it could be said that the award made by an arbitrator under Section 54 of the Societies Act was an order or a decree of a civil Court. The learned Chief Justice examined the relevant provisions of the Co-operative Societies Act and came to the conclusion that there was no warrant for the suggestion made that the Registrar should be deemed to be a civil Court when he makes an award under Section 54 of the Act. "The argument for the appellant." observed Beaumont C.J. "really involves that every person or body on whom is imposed by statute the obligation of deciding disputes between particular persons is to be regarded as a civil Court within the meaning of the limitation Act." He took the view that such a contention was quite unarguable. On that view it was held that the darkhast filed by the appellant was barred under Art. 181 of the Indian Limitation Act. As I have said above, the appellant himself had conceded that if in terms the award made by the Registrar under Section 54 was not held to be an order or a decree of a civil Court, then Art. 181 would apply. That being the position, the Court did not think it necessary to consider the other aspects of the matter which would otherwise have been relevant and material. The question as to whether the provisions of the Code of Civil Procedure such as Secs.39, 48 and the rules under 0. XXI, would apply to an application made to execute an award was not argued before the Court and has not been considered. Similarly, the effect of the material words in Section 59(1) (a) where it is provided that every order therein referred to shall be executed in the same manner as a decree of such Court was also not considered. In that ease the appellant based his ease only on one argument, viz. that in making an award under Section 54 of the Societies Act the Registrar or his nominee must be deemed to be a civil Court and as such the order made by him must be taken to be an order of a civil Court. That is why the division bench disposed of the matter on that footing alone. They held that the Registrar cannot be said to be a civil Court while he is making an award under Section 54. It may be noticed that it was assumed in this case that applications made under Section 59(1) (a) to execute awards are governed by the provision's of the Limitation Act though there is no discussion about this point. Thus this decision does not afford any assistance in deciding the question as to the effect of the words "in the same manner as a decree of such Court" used in Section 59(1) (a) of the Societies Act.