Andhra Pradesh High Court
Judges : V.V.S.RAO
S.Varalakshmi - Appellant
Versus
District Cooperative Office, Hyderabad - Respondent
Decided On : 09-24-03
A. P. Mutually Aided Co-operative Societies Act,1995 – Section 37 – A. P. Co-operative Societies Act, 1964 – Section 61, 70, 71, 76, 77, 78,101 and 130 – Rule 52 – Land acquisition Act, 1894 – Sections 6, 23 (2) and 28 – Nagpur Improvement Trust Act, 1936 – Punjab Town Improvement Act, 1922 – A. P. Co-operative Societies rules, 1964 – Petitioner wife one appears third respondent availed a loan in an amount from second respondent for the purpose of dairy business – Petitioner s husband mortgaged the property being a residential house to secure loan was a default in payment of the loan amount second respondent bank which is a co-operative bank governed by A. P. Mutually Aided Co-operative Societies act,1995 filed original petition being under Section 37 of said Act before A. P. Co-operative Tribunal for recovery of loan said o. P. was filed against petitioner s husband her son and herself receipt of notice petitioner and others did not appear before tribunal – Therefore Tribunal passed an order directing third respondent and petitioner herein to pay a sum of together with interest at from date of the said Award – Award became final – After obtaining order/award of Tribunal second respondent approached first respondent for executing award – But by a demand notice first respondent called upon petitioner and others to pay an amount with interest within ten days petitioner was also informed that if fails to pay amount in execution of award property will be attached – Held, Whether relevant rules dealing with execution of awards/recovery as contained in A. P. Co-operative Societies rules, 1964 made under Section 130 of 1964 Act are also applicable for execution of orders/decrees under Section 36 of AP MAC Act – It is well settled principle of law that when in exercise of powers conferred on them to make delegated legislation Government makes statutory rules they form part of main statute rules have to be read along with provisions in main statute though Section 36 of AP MAC Act does not specifically refer to A. P. Co-operative Societies Rules by reason of settled principles of law as said Rules become part of 1964 Act those Rules also are applicable to proceedings taken up for execution of decisions/orders passed by tribunal under AP MAC Act – Procedure for execution of decree in 1964 Act is laid down in Section 70 said provision empowers Registrar or any person authorized by him to recover any amount due under a decision or order of Registrar method of recovery under Section 70 of 1964 Act is other mode of recovery provided by or under 1964 Act". Sub-section (2) of section 70 specifically provides that if an order or decision made either under section 60 or Section 71 or Sections 76, 77 or 78 may be recovery by execution by civil Court, by the Collector, or by Registrar in the manner provided under Section 71. Section 130 empowers the Government to make Rules for carrying out of purpose under 1964 Act – In furtherance thereof, 1964 Rules were made. Rule 52 is a self contained code in itself for execution of decrees decisions or orders – Necessarily, when Registrar undertakes to execute a decision or decree under 1964 Act he has to follow procedure under Rule 52. Rule 52 is intended to avoid arbitrary or high-handed execution – This procedure is applicable even to execution of decisions or decrees passed by the tribunal under Section 37 of AP MAC Act – Application fails and is accordingly dismissed.
( 1 ) THE petitioner is the wife of one Satyanarayana. It appears, the third respondent availed a loan in an amount of Rs. 3,50,000/- from the second respondent for the purpose of dairy business. The petitioner s husband mortgaged the property being a residential house to secure the loan. There was a default in payment of the loan amount. The second respondent bank which is a co-operative bank, governed by the A. P. Mutually Aided Co-operative Societies act,1995 (for short a. P. MAC Act ), filed original petition being O. P. No. 8 of 2000 under Section 37 of the said Act before the A. P. Co-operative Tribunal, hyderabad (hereafter called the Tribunal ) for recovery of the loan. The said o. P. was filed against the petitioner s husband, her son and herself. Even after receipt of the notice, the petitioner and others did not appear before the tribunal. Therefore, the Tribunal passed an order directing the third respondent and the petitioner herein to pay a sum of Rs. 15,17,641/- together with interest at 6% from the date of the said Award. The Award dated 26-8-2000 became final. After obtaining the order/award of the Tribunal, the second respondent approached the first respondent for executing the award in O. P. No. 8 of 2000. But, by a demand notice dated 16-7-2003 the first respondent called upon the petitioner and others to pay an amount of Rs. 6,96,143/- with interest at 23% from 1-4-2003 within ten days. The petitioner was also informed that if she fails to pay the amount in execution of the award, the property will be attached. As there was no compliance with the demand notice, dated 16-7-2003, the first respondent issued the notice prior to sale of mortgaged immovable property in Form No. 6 under Rule 52 (11) (b) and (c) of the A. P. Co-operative societies Rules, 1964, ( the Rules ) calling upon the petitioner to pay an amount of Rs. 6,33,172/- with interest at 23% per annum from 1-7-2003. This notice also informs the petitioner and others that if the advice is not heeded, the property mortgaged shall be attached and sold. This notice is challenged in this writ petition. Learned counsel for the petitioner, Sri Y. Srinivasa Reddy, submits that even before receiving the demand notice, the petitioner submitted a representation on 24-5-2003 and without considering the same, the impugned notice was passed. He nextly contends that when the award was passed by the Tribunal under Section 37 of the A. P. MAC Act, resort to execution procedure under Section 70 of the A. P. Co-operative Societies Act, 1964 ( the 1964 Act ) read with Rule 52 of the rules is without jurisdiction. He lastly would contend that the award was passed by the Tribunal for an amount of Rs. 3,72,341/- whereas the amount sought to be recovered in execution is Rs. 6,31,172/-, which is at variance with the award/decree and, therefore, that cannot be treated as award. He placed reliance on the judgment of the Supreme Court in Rameswar Das Gupta v. State of u. P. 1. Before dealing with the question of jurisdiction, the two contentions raised need to be disposed of. The submission that the decree is at variance with the original award cannot be accepted. An award was passed for an amount of rs. 3,75,341/- with future interest at 6% per annum till the date of realization. The award was passed on 26-8-2000. Therefore, there cannot be any surprise if the award amount goes up by another about Rs. 3 lakhs. Even if the petitioner has any grievance about the amounts sought to be realized in execution, nothing prevents him to make an application under sub-rule (21) of Rule 52 of the Rules raising this point with a request to properly calculate the amount payable by him. The remedy before this Court cannot be proper to adjudicate this issue. Secondly, the submission that the petitioner s representation was not considered and, therefore, the award cannot be executed in law, is stated only to be rejected. In the application dated 24-5-2003 while raising disp
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