Tuesday, 26 July 2016

How to decide jurisdiction of civil court for execution of award passed by registrar of co-operative society?

Thus it is obvious if we read section 98 and Rule 83 cited supra that the choice of forum is of the party and not of the Registrar. It is open for the party in whose favour the award has been passed to select a particular forum of execution. Whenever a certificate is issued by the Registrar, it merely enables the party to take out execution through an application to the Court of local jurisdiction wherein the judgment-debtor resides or carries on business or personally works for gain. Hence the Civil Judge, Senior Division, Amravati having the jurisdiction to entertain the original suit has every power and jurisdiction to entertain the present execution application coming to it directly. It is not at all necessary to bring the execution to the Amravati Court with a transfer certificate from Ahmednagar Court. The contention of the learned counsel for the revision-applicant that the decree-holder should have filed execution application at Ahmadnagar Court and then got it transferred to Amravati cannot be accepted being without substance.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Civil Revn. Appln. No. 342 of 1978
Decided On: 15.10.1983
Appellants: Onkar Rajaram Wathodkar
Vs.
Respondent: Ramnarayan Khatod and Sons
Hon'ble Judges/Coram:
G.A. Paunikar, J.
Citation:1984BCI 42

1. This revision application is filed by the original judgment-debtor Onkar Rajaram against the order dated 4-4-1973 passed by the Civil Judge, Senior Division, Amravati in Special Execution Case No. 250/1973 still pending on his file rejecting his objection to the execution proceedings.
2. The non-applicant, decree-holder having obtained an award from the Officer on Special Duty Co-operative Department, Ahmednagar in Arbitration Case No. SR/AB/N/484 on 27-11-1970 in respect of transaction entered into with the Amravati Central Co-operative Consumers Wholesale and Retail Stores Ltd., Amravati, wanted to have the amount under the award recovered through execution proceedings as against the applicant who at the relevant time was the Vice-President of the said society. He obtained a certificate from the Registrar and filed Darkhast proceedings before the Civil Judge, Senior Division, Amravati for recovery of the amount under the award.
3. The applicant objected to the said Darkhast on the ground that the decree-holder should have filed the execution application in Ahmednagar Court and then got it transferred to Amravati Court as per provisions contained in sections 38 and 39, Civil Procedure Code vide his application Ex. 10 which was rejected by the Civil Judge, Senior Division, Amravati and be ordered the Darkhast to proceed vide his order dated 4-4-1978. This order is challenged in this revision application.
4. The learned counsel for the revision applicant Shri Chandurkar submitted that section 98 of the Co-operative Societies Act, 1960 and Rule 83 of the Co-operative Societies Rules, 1961 provide for mode of the execution of Awards passed by the Registrar, Co-operative Societies or by officers on special duty. For the purpose of understanding the import of the said provision, section 98, Clause (a) is reproduced below:—
Every order passed by the Registrar or a person authorised by him under section 88 or by the Registrar (or Co-operative Court) under section 95......if not carried out.....
(a) on a certificate signed by the Registrar or a liquidator be deemed to be a decree of the civil Court and shall be executed in the same manner as a decree of such Court.
The said provision clearly lays down that an Award passed under the Co-operative Societies Act is executable like a decree in a civil Court. The award is not required to reach the Civil Court through agency of the Registrar but after obtaining a certificate from the Registrar it can be executed directly. If any award is to be made executable like a decree of the civil Court by the provisions of law only an application to the Civil Court of local jurisdiction will be necessary. Thus the civil Court of local jurisdiction is empowered to execute the award like a decree of the civil Court as held in Indore Parasper Sahakari Pedhi Union v. B.M. (sic) MANU/MP/0068/1958 : AIR 1958 MP 199.
Rule 83 of the Rules framed under the Act lays down as under the procedure for execution of awards:
(i) Every order or award passed by the Registrar or the person authorised by him (the Co-operative Court) under section 95 or 96 shall be forwarded by the Registrar to the society or to the party concerned with instructions that the society or as the case maybe, the party concerned should initiate execution proceedings forthwith according to the provisions of section 98.
Thus it is obvious if we read section 98 and Rule 83 cited supra that the choice of forum is of the party and not of the Registrar. It is open for the party in whose favour the award has been passed to select a particular forum of execution. Whenever a certificate is issued by the Registrar, it merely enables the party to take out execution through an application to the Court of local jurisdiction wherein the judgment-debtor resides or carries on business or personally works for gain. Hence the Civil Judge, Senior Division, Amravati having the jurisdiction to entertain the original suit has every power and jurisdiction to entertain the present execution application coming to it directly. It is not at all necessary to bring the execution to the Amravati Court with a transfer certificate from Ahmednagar Court. The contention of the learned counsel for the revision-applicant that the decree-holder should have filed execution application at Ahmadnagar Court and then got it transferred to Amravati cannot be accepted being without substance.
5. Shri Chandurkar learned counsel for the revision-applicant relied upon the ruling reported in Krisnaji Shridhar Barde v. Mahadeo Sakharam Patil AIR 1922 Bom. 337. This is a case under Bombay Co-operative Societies Act, 1912 section 43 and rule 24. In this case, Small Cause Court, Poona dismissed the application by which a request was made to transfer the award for execution to the Small Cause Court, Bombay. The Trial Court was of the opinion that under section 39, Civil Procedure Code, the Court which had passed the award/decree could alone give a certificate under that section. However, Their Lordships held that the Court which has power to execute the award under Rule 34 framed under the Co-operative Credit Societies Act had the power to transfer it for execution. Hence the learned counsel submitted that it was the Ahmadnagar civil Court to which the decree-holder ought to have approached first and get a transfer certificate under section 39 of Civil Procedure Code from Ahmadnagar Civil Court to the Civil Court at Amravati. There is no dispute that the award is executable like a decree in a civil Court. However, the point in this case is whether the executing Court wilt mean the civil Court at Ahmadnagar whereas the award is passed by the officer on special duty at Ahmadnagar, This conclusion cannot be drawn from this authority as rightly held by the Trial Court. However, as I have held in preceding para that on plain reading of section 98 and Rule 83, the choice of forum is of the party, in whose favour the award has been granted. After a certificate is obtained from the Registrar, it is open to a party to take out execution application in the civil Court of original jurisdiction, who has jurisdiction to pass a decree and to execute it against the judgment-debtor.
6. I, therefore, hold that there is no merit in this revision application and it deserves to be dismissed. It is hereby dismissed. However, under the facts and circumstances of this case, there will be no order as to costs.
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