(This Writ appeal is filed u/S 4 of the Karnataka High Court Act praying to set aside the order passed in the Writ Petition No.19526/2009 (CS-DAS) dated 15.07.2009.)

Challenge in this appeal is to the order passed by the learned Single Judge rejecting the writ petition with costs. In the writ petition, the appellant had prayed for issuing a direction to the 1st respondent and compel him to recover the loan amount by attaching the salary of 2nd respondent, as per the attachment warrant issued by a Recovery Officer.

2. Briefly stated, the facts which have led to the filing of the writ petition are as follows:

The Appellant is a Co-operative society, registered under the Karnataka Co-operative Societies Act, 1959 (for short ‘the Act’). It had advanced loan to one Smt. Geetha. The 2nd respondent was one of the sureties to the said loan. To realize the loan amount, appellant filed a petition under S.70 of the Act against the loanee and the sureties.

An award was passed under S.71, which was put into execution by filing a recovery petition under S.101 of the Act, wherein, the executing authority issued a warrant of attachment of salary in exercise of the power under Rule 37(1) of the Karnataka Cooperative Societies Rules, 1960 (for short ‘the Rules’), directing the 1st respondent to withhold Rs.2,000/- per month from the salary of the 2nd respondent and remit to the society. Alleging that the 1st respondent did not give effect to the salary attachment warrant and discharge the statutory duty under sub-section (2) of S.34 of the Act, the writ petition was filed seeking the said reliefs.

3. Sri. B.S. Nagaraj, learned advocate appearing for the appellant contended that the 2nd respondent has executed the agreement under S.34 of the Act and hence the 1st respondent had a duty to give effect to the salary attachment warrant issued by the Recovery Officer. Since the 1st respondent failed in its duties, the writ petition was filed to direct the 1st respondent to act in accordance with S.34(1) & (2) of the Act, which was not correctly considered by the learned Single Judge and as a result, on a wholly erroneous view of the matter, the writ petition was rejected and hence interference is called for. Learned counsel placed reliance on the decision in the case of K.G. Rajashekara Vs. The State of Karnataka (ILR 2008 Karnataka 4048).

4. We have perused the writ appeal papers. The point for consideration is:

Whether the writ petition is maintainable?

5. Appellant has obtained an award for recovery of Rs.36,069/- along with interest against the 2nd respondent and others. 2nd respondent is employed under the 1st respondent. To recover the award amount, appellant initiated recovery proceedings. The procedure for execution of the awards passed under the Act is provided under Rules 33(A) to 49 of the Rules, 1960. The Recovery Officer, exercising authority under Rule 37(1), issued the salary attachment warrant to the 1st respondent to attach Rs.2,000/- per month from the salary of the 2nd respondent and remit the amount to the society. Alleging that the 1st respondent has not given effect to the salary attachment warrant, the writ petition is filed to direct the 1st respondent to give effect to the salary attachment warrant.

6. In the case of Rajashekara (supra), the contention raised was that, when once an award under S.70 of the Act is obtained, the society cannot invoke S.34 of the Act. Negativing the contention, it was held that, there is no prohibition for a creditor to invoke S.34(1) and (2), eventhough an award is obtained against the judgment debtor. The ratio of the decision has no application to the point which has arisen for consideration in this appeal.

7. Provision contained under S.109 of the Act is relating to the offences and penalties. Sub-section (4) thereunder is with regard to the offence by the employer who without sufficient cause fails to make the deduction under sub-section (2) of S.34, or fails to pay to cooperative