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PETITIONER: [IN  THE SUPREME COURT OF INDIA  (HYDERABAD).]CO-OPERATIVE S

       Vs.

RESPONDENT: NANDLAL

DATE OF JUDGMENT: 12/10/1950

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND NAIK R.S.

CITATION:  1950 AIR  274            1950 SCR  741

ACT:     Co-operative Credit Societies Act, 1340 F., (Hyderabad), s.  42  --Award--Remission by Registrar to Civil  Court  for execution-Powers          of           Registrar--Instalment decree--Default--Execution  proceedings for whole amount  in Civil  Court--Power  of Registrar to accept  instalment  and direct Civil Court to stop proceedings.

HEADNOTE:     Section  42  of the Co-operative Credit  Societies  Act, 1340 (Hyderabad) provided as follows: "If an award given  by the  Registrar  or  by a person nominated by him,  or  by  a committee of arbitrators is not acted upon, then the  Regis- trar  can have it enforced--(a) through a civil court  on  a certificate  issued by him. The civil court will  treat  the award in the same way as its own decree;(b) through a  Reve- nue  Court or oficer by issuing a certificate to that  court or officer."    Held, that under the section the Registrar was not in the same position as a court passing the decree under the  Civil Procedure Code in the matter of execution of the decree  and he does not possess all the powers of an executing court.    Where  a dispute arose between a member of a society  and the society and an arbitrator appointed under the Act passed a decree for payment of a certain sum in six monthly instal- ments  with  a  condition that if default was  made  in  the payment of any instalment the whole amount will become  due, and  under the provisions of s. 42 the decree was  sent  for execution to the Civil Court on a certificate of Registrar: 95 742     Held, that after a default had been made in the  payment of the first instalment and the whole decree debt had become due  and  execution had been taken out for recovery  of  the whole  amount,  the [Registrar had no power  to  accept  the amount of first instalment and direct the executing court to stop further proceedings, and the executing court was  enti- tled to ignore the Registrar’s order and to proceed with the execution.

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JUDGMENT:     APPEAL  under article 374(4) of the Constitution from  a judgment  and  decree of the High Court of  Hyderabad  dated 24th Aban 1356 F., in Civil Appeal No. 374/4 of 1356 F. Devi Pershad, for the appellant. Appa Rao and Sada Shiva Rao, for the respondent.     1950. October 12.  The judgment of the Court was  deliv- ered by     MAHAJAN J.--This appeal arises out of execution proceed- ings of a decree passed by an arbitrator under the Co-opera- tive Credit Societies Act.  The appeal was presented to  the Judicial  Committee of the State and is now before us  under article 374 (4) of the Constitution.     Raja  Nandial was a member of the decree-holder  society and  was also its debtor.  A dispute arose between  him  and the society and under the rules governing such societies the matter  was referred to arbitration. The arbitrator  on  the 19th  Meher 1352 F., passed a decree against him in the  sum of  Rs. 8,100 payable in equal six monthly instalments  with six  per cent. interest, the first instalment being  payable at  the end of Azur 1353 F.  On the 2nd Dai 1353  F.,  under the  provisions of section 42, clause (d), of the  Co-opera- tive Societies Act the decree was sent for execution to  the civil  court on a certificate issued under the signature  of one  Moulvi  Mohammed Hasan, Madadgar  Nazim.   The   amount recoverable   was  stated  as Rs. 8,100  principal  and  Rs. 6669-0 interest.  On the same day the decree-holder present- ed  an application for execution of the decree to the  Civil Court, Balda. claiming recovery of Rs. 10,339-14-9.  It  was alleged that as default had been committed in the payment of 743 the  first instalment due in the month of Azur 1353  F,  the whole decretal amount had become recoverable. It was  prayed that  the property detailed in the application be  attached. On  3rd Dai 1353 F., i.e., a day after the  presentation  of the application for execution, the judgment debtor deposited a  sum  of  Rs. 1,000 towards the first  instalment  in  the Office  of the Registrar of Co-operative Societies  and  ex- pressed his will lingness to deposit any further amount that may  be  due towards that  instalment.  The  Nazim’s  office stated  in  reply that as he had committed  default  in  the payment of the first instalment the whole decree had  become due  and  the  amount of Rs. 1,000 could  not  be  accepted. Subsequentiy, however, on the 5th  Dai 1353 F, a letter  was issued by one Mohammed Aihsan, Assistant Madadgar Nazim,  to the  Civil  Court,  Balda, saying that Rs.  1,034  had  been deposited  in the Office of the Nizamat Co operative  Credit Societies and therefore the proceedings in execution  should be  stayed  or adjourned.  On receipt of the letter  in  the civil court, the decree-holder raised an objection that  the Registrar  had  no  jurisdiction to stay  execution  of  the decree as he was not an executing court.  This objection was overruled by the court and it was held that under the provi- sions of section 42 of the Co-operative Credit Societies Act the Registrar retained the power of staying execution of the award  decree even after the issue of a certificate by  him. In  the  result  the  execution  proceedings  were   stayed. Against this order an appeal was taken to the Sadar  Adalat. The Sadar Adalat allowed the appeal partially and held  that to  the extent of the payment made the decree could  not  be executed  but  it could be executed with respect  to  future instalments  as  and when they would fall  due.  It  further found that the default clause in the decree must be taken to have been condoned by the deposit of the first instalment in the  office of the Registrar. The decree-holder preferred  a

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second appeal to the High Court but  without  any   material success.  The  High  Court  held  that  there  had   been  a default in  the  payment  of the first  instalment 744 and  the  decree-holder  had  thus  a  right to execute  the whole decree and that neither the Registrar nor the  execut- ing court could deprive the decree-holder of that right.  In spite  of this finding it took the view that  the  Registrar still  retained jurisdiction to adjourn  execution  proceed- ings.   The contention of the judgment-debtor that the  cer- tificate  was bad as having been issued by a Madadgar  Nazim was  negatived.   It was held that the  Madadgar  Nazim  had delegated  powers  in this respect and that the  defect,  if any, stood cured by a fresh certificate signed by the  Nazim himself.  The result was that with these findings the  deci- sion  of the executing court adjourning the  execution  pro- ceedings was maintained.     The  first point for consideration in this appeal is  as regards the jurisdiction of the Registrar functioning  under the  Co-operative Credit Societies Act in respect to  execu- tion  of decrees.  The decision of this question depends  on the interpretation to be placed on the language employed  in section 42, clause (d), of the Cooperative ’Credit Societies Act, 1340 F., as amended. This section is in these terms :-     "If  an  award  given by the Registrar or  by  a  person nominated  by him, or by a committee of arbitrators  is  not acted upon, then the Registrar can have it enforced-     (a)  through  a civil court on a certificate  issued  by him.   The civil court will treat the award in the same  way as its own decree;     (b)  through  a Revenue Court or officer  by  issuing  a certificate to that court or officer."     The language employed in this section does not place the Registrar on the same pedestal as a court passing the decree under the Civil Procedure Code. Under the Code a civil court passing a decree is also the court executing the decree.  It has  a dual capacity, (1) of the court passing  the  decree, and  (2) of the executing court. The Registrar, it  appears, has the first capacity of a civil court but he has not  been placed in the matter of execution in the same capacity as  a civil court passing a decree.  The only 745 jurisdiction conferred on the Registrar is that he can issue a  certificate and on that certificate he can send a  decree either to the civil court or to a revenue officer. It may be that  after  issuing  a certificate he may  be  entitled  to cancel the certificate or issue another, or he may by  with- drawing  the  certificate withdraw execution  from  a  civil court and send it to a revenue court and vice versa.  On the plain words of the section it cannot be held that the Regis- trar  has  been constituted an executing court or  that  any powers  in the matter of the execution of the  award  decree have been conferred upon him.  The question that arises  for consideration is whether in view of this construction of the section  it  was open to the Registrar to  intervene  during execution proceedings that were pending in a civil court  on the  basis of the certificate granted by him.  In  order  to determine  this point it is necessary to see precisely  what the  Registrar actually did in this case.  After  a  default had been made in the payment of the first instalment and the whole  decree  debt had become due and  execution  had  been taken out for recovery of the amount, the Registrar accepted the  amount of the first instalment and asked the  executing court  to  stop further proceedings.  The act of the  Regis- trar  in accepting the first instalment was a clear trespass

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on  the  duties of the executing court.  It is only  in  the executing  court where payment towards satisfaction  of  the decree, the execution of which had been taken out, could  be made,  unless  the  court passing the decree  has  also  the jurisdiction  to  execute it.  As already  indicated,,  this jurisdiction is not possessed by the Registrar.  That  being so, in our opinion, the requisition of the Registrar to  the executing court to stop execution  proceedings and  his  act in  accepting the  first   instalment  were  in  excess   of the  jurisdiction conferred on him and the  executing  court was  entitled to ignore it.  Moreover, the  Registrar  could not  alter or amend the decree passed by the  Arbitrator  at this stage.      All  the courts below have interpreted the  section  to mean that the Registrar as the court passing the 746   decree  has the same power as the court executing  it.  We are  unable  to  agree in this view in view  of  the   clear language employed in the section.  The analogy of  decisions given in respect of civil courts is not available in  inter- preting  this Act.    Under the Civil   Procedure  Code  the parent  court,  i.e., the court passing the  decree,  always retains  jurisdiction tO execute  the decree even if it  has been  transferred to one or more courts for the  purpose  of execution.  Primarily it is the function of the court  pass- ing the decree to execute it but when it is found that it is not possible for it to effectively execute it provision  has been  made  in the Code authorising it to send it  to  other courts  the purpose of execution; but none of  these  provi- sions in any way affect the jurisdiction of the court  pass- ing the decree to execute it whenever it thinks fit to do so and  the order transferring execution to other  courts  does not take away its jurisdiction in the matter. The   position however in the case of the Registrar is entirely  different. He  himself has been given no jurisdiction   to execute  his own  decree.  The only power conferred  on him is to get  it realized  through a civil court or a  revenue court and  the only  authority conferred on him is to issue  a  certificate for that purpose.     The High Court in this case has, in our opinion  given a decision  contradictory to its own findings.  It   has  been held  that  the first appellate court was in  error  in  the view  that the default clause in the decree  stood  condoned by  the  payment of the first instalment  by  the  judgment- debtor  in  the  office of the Registrar  and  it  has  been positively  found  that once a default  has  been  made  the Registrar  had no jurisdiction to  condone it and  that  the decree-holder  was entitled to  execute the decree  for  the full  decretal amount with  interest.  Having  reached  this conclusion the High  Court still maintained the decision  of the two courts  below adjourning the execution  proceedings. The logical result of the High Court’s decision is that  the certificate  stands and the execution application has   been properly  made  and the decree-holder is  entitled   to  the relief claimed but in spite of it it has been held 747 that the Registrar can stay the proceedings.  It seems to us that  the act of the Registrar in asking the civil court  to stay  execution  proceedings pending before it  is  a  clear encroachment on the powers of the executing court and is  in excess of his statutory powers and should.have been  ignored by the courts.     As a fresh certificate was issued by the Nazim in  order to cure a defect that might be said to exist in the original certificate because of its having been sent by the  Madadgar

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Nazim, it is unnecessary to consider the contention  of  the learned   counsel  that there was no proper  certificate  in this case and the proceedings  in execution therefore   were without  jurisdiction.     The result therefore is that this appeal is allowed, the decisions  of all the three courts below are set  aside  and the  executing court is directed to proceed with the  execu- tion of the decree from the stage at which it was interfered with  by the letter received from the office of  the  Regis- trar.   In the circumstances of this case we will make no  o rder as to costs of the proceedings throughout.                         Appeal allowed.