MUGI SUBBAYYA Vs. RAVULACHERUVU THIPPA REDDI

JUDGEMENT

(1.) This appeal arises out of a suit to set aside a sale held by the Deputy Registrar of Co- operative Societies as liquidator of a Co-operative Credit Society. The grounds upon which the sale was sought to be set aside are substantially the failure of the selling officer to follow strictly the procedure laid down in the rules under the Co-operative Societies Act. The suit was dismissed by the trial Court on the grounds that the Civil Court has no jurisdiction to entertain such a suit for a remedy in respect of which a special machinery has been provided by the Act; and also because by reason of Section 48 of the Madras Co-operative Societies Act whereunder the suit would not lie without the leave of the Registrar. The learned District Judge has reversed the trial Court on both these grounds, holding that the jurisdiction of Civil Courts cannot be taken away unless it is expressly excluded by the Statute in question and that Section 48 has no application because the bringing of properties to sale in execution of a decree or an award is not part of the winding up of the Society.

(2.) It seems to me that the decision of the learned District Judge is demonstrably wrong on both these grounds. In the first place the authorities which the learned District Judge quotes for the view that the jurisdiction of the Civil Court is not ousted unless it is ousted by the express terms of the statute propound precisely the contrary proposition and the fact that jurisdiction may be ousted by necessary implication seems to follow from the words of Section 9 of the Civil Procedure Code, which are to the effect that the Courts shall have jurisdiction to try all suits of a civil nature except suits of which their cognisance is either expressly or impliedly barred. All the cases to which I have been referred recognise that the jurisdiction of the Civil Courts may be ousted by necessary implication when a special statutory machinery has been set up and that the ouster need not be express. As to the reason for not applying the bar under Section 48, the learned District Judge has overlooked the fact that though this suit has been filed nominally against the liquidator, it is in fact against the liquidator as representing the Society and such being the case, the second portion of Section 48 will apply and the suit will not lie without the leave of the Registrar.

(3.) This is sufficient to, dispose of the appeal, but, as the more important question of the jurisdiction of the Civil Courts has been argued at length, it is desirable that I should say a few words upon it. The facts are that the plaintiff borrowed money from the Society and mortgaged properties as security for the loan. When the Society was in liquidation, the liquidator having got a decree against the plaintiff, in execution of that decree through the agency of the Co-operative Department sold the properties to the present appellant, the second defendant in the suit, on 10 September, 1936. Under the rules framed under the Madras Co-operative Societies Act a special procedure is prescribed whereby a person whose property has been sold can, by taking action within thirty days of the sale, establish before the Registrar his right to have the sale set aside on the ground of irregularity, mistake or fraud by a procedure almost identical with that prescribed under O. 21 of the Civil Procedure Code. The plaintiff took no such action but on 12 March, 1937, that is to say, some five months after his remedy under the statutory rules was barred, he filed the present suit. The plaint is not drafted as if the plaintiff were merely seeking the common law remedy against a trespass by an unauthorised person upon property to which he was entitled. It is drafted just as if the plaintiff had a right by statute to contest in the Civil Courts the regularity of the sale on the ground that the statutory formalities had not been complied with; that is to say, the plaintiff seeks to call in aid the Civil Courts to procure a remedy which would have been hopelessly barred if sought in the tribunal specially designated by the statute for that purpose.