2007 Supreme(Kar) 622

Karnataka High Court
Judges : ABDUL NAZEER
K.SUNDAR RAO - Appellant
Versus
K.RAMAKRISHNA RAO - Respondent
Writ Petition 13450 Of 2007
Decided On : 09/21/2007

Headnote:Karnataka Co-operative Societies Act, 1959 - Nomination of representatives - Right of Government - Government stood guarantee for a huge sum obtained by society - It is an assisted society - Hence, held, Government has every right to appoint and niminate its own representatives. [N. K. Patil, J.]: Government has stood as guarantee with NABARD, NCDC to the tune of Rs. 850 crores to the second respondent-Bank and therefore, Government has got every right, power and jurisdiction to nominate three persons representing State Government as envisaged under Section 29(1) of the Act, where under, it has been specifically stated that, the Government has the power to nominate its representatives to the Committed of an Assisted Co-operative Society. In this context, it is relevant to know what is an Assisted Society. Section 2(a-1) defines an "Assisted Society" as a Co-operative Society which has received the Government assistance in the form of share capital or loan or grant or guarantee for repayment of loan or interest." In the instant case, it is undisputed that, Government has stood guarantee by executing Deeds of Guarantee on behalf of second respondent-Bank vide Annexure-R1 produced by first respondent alone with the statement of objections and Annexure-R2 produced by respondents 3, 5 and 6 along with the statement of objections. After careful perusal of the recital of the terms and conditions of the said deeds, it is amply clear that, Government is the guarantee for the second respondent-Bank in respect of loans from NABARD and NCDC. If that is so, in my view, Government has every right to appoint and nominate its own representatives as per Section 29(1) of the Act and that, there is no lacuna in the impugned Notifications issued by first respondent and the same are highly sustainable in law. Therefore, interference by this Court in the impugned Notifications that are issued in consonance with the relevant provisions of the Act is totally uncalled for nor I find any good grounds to entertain the instant writ petition.

       Decree - Preliminary and final decrees - Principles. Dilatory settled principles : Until final decree determining the rights of the parties by metes and bounds is drawn up and it si engrossed on the stamp papers supplied lby the parties, there is no executable decree so as to attract Article 182.[(1995) 3 SCC 413]. in a partition suit, the Court is required to define the shares of the partis, identify the joint properties which are to be partioned, allocate the properties to the parties as per their respective shares and put the parties in possession of the properties allocated to them. In partition matters, it is always open to the parties to enter into fresh arrangment. The parties are free to adopt whatever course of action they may choose in future by way of mutual arragment. [(2003) 7 SCC 452]. preliminary decree declares decree may be both preliminary and final. There can be more than one final decree. A decree may be partly preliminary adn partly final. A final decree proceedings may be inititate at any point of time. Without drawing a final decree proceedings, the Court cannot put the property on auction sale. This decision is also not applicable to the facts of the case. [2007 AIR SCW 1011]. A decision is said to be final when so far as the Court rendering it is concerned, ti is unalterable except by resort to such provision of the Code of Civil Procedure as permits reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judiciate between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a morgtage suit or a partieion suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. Nodoubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree-the decree wihich would be exceutable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its pbeng executable. The legislature in its wisdonm has thoujgh that suits of certain types shold be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also ahs a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal lfrom it, he is preclusdex from dispute its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to he matters covered by it. a preliminary decree is regared as emobodying the final decsion of the Court passing that decree.[AIR 1963 SC 992].

       Code of Civil Procedure, 1908 - Section 97 - Preliminary decree - Changes in circumstances after passing of - Taking into account - Permissibility. [Abdul Nazeer, J]: Section 97 of the Code of Civio Procledure clearly indicates that the matters covered by a preliminary decree is regarded as emobyding the final decision of the Court passing that decree. However, changes in the circumstances after the preliminary decree has been passed ban be takeninto account. for example, if the parties arrive at a compromise or where some of the parties tgive up certain rights in favour of one of the parties after the prelimiary decred, the effect of such compromise or giving up should be given while passing the final decree.

       Cases Referred: AIR 1963 SC 992; AIR 1977 SC 292; AIR 1977 Kar 60; AIR 1997 Kar 370; AIR 1967 MAD 305; AIR 1977 SC 2027; (1995) 3 SCC 413; (2003) 7 SCC 452; 2007 AIR SCW 1011.

       Decree - Preliminary and final decrees - Principles. Dilatory settled principles : Until final decree determining the rights of the parties by metes and bounds is drawn up and it is engrossed on the stamp papers supplied lby the parties, there is no executable decree so as to attract Article 182 [(1995) 3 SCC 413]. in a partition suit, the Court is required to define the shares of the partis, identify the joint properties which are to be partioned, allocate the properties to the parties as per their respective shares and put the parties in possession of the properties allocated to them. In partition matters, it is always open to the parties to enter into fresh arrangment. The parties are free to adopt whatever course of action they may choose in future by way of mutual arragment [(2003) 7 SCC 452]. Preliminary decree declares decree may be both preliminary and final. There can be more than one final decree. A decree may be partly preliminary adn partly final. A final decree proceedings may be inititate at any point of time. Without drawing a final decree proceedings, the Court cannot put the property on auction sale. This decision is also not applicable to the facts of the case [2007 AIR SCW 1011]. A decision is said to be final when so far as the Court rendering it is concerned, ti is unalterable except by resort to such provision of the Code of Civil Procedure as permits reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judiciate between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a morgtage suit or a partieion suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. Nodoubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree-the decree wihich would be exceutable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its pbeng executable. The legislature in its wisdonm has thoujgh that suits of certain types shold be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also ahs a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal lfrom it, he is preclusdex from dispute its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to he matters covered by it. A preliminary decree is regared as emobodying the final decsion of the Court passing that decree. [AIR 1963 SC 992].

       Cases Referred: AIR 1963 SC 992; AIR 1977 SC 292; AIR 1977 Kar 60; AIR 1997 Kar 370; AIR 1967 MAD 305; AIR 1977 SC 2027; (1995) 3 SCC 413; (2003) 7 SCC 452; 2007 AIR SCW 1011.