A decree passed without the requisite notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, is not a nullity and can be challenged only through the appropriate appellate process, not in execution proceedings.

Headnote:
CO-OPERATIVE SOCIETIES - MAHARASHTRA CO-OPERATIVE SOCIETIES ACT, 1960 - SECTION 164 - NOTICE NECESSARY IN SUITS - DECREE PASSED WITHOUT NOTICE - EXECUTION - JURISDICTION OF EXECUTING COURT - DECREE NOT A NULLITY.
Fact of the Case:

The appellant, a registered co-operative society, challenged the execution of a decree obtained by the respondent against it, arguing that the suit leading to the decree was not maintainable as the respondent had failed to give the requisite notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, prior to instituting the suit.
Finding of the Court:

The court held that the executing court did not have the jurisdiction to go behind the decree and examine the validity of the notice under Section 164. The court reasoned that non-compliance with Section 164 did not deprive the court of its inherent jurisdiction to try the suit and pass the decree. The decree, though contrary to the provisions of Section 164, was not a nullity and could not be challenged in execution proceedings.
Issues: 1. Whether the executing court had the jurisdiction to examine the validity of the notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, in execution proceedings. 2. Whether a decree passed without the requisite notice under Section 164 was a nullity and incapable of execution.
Ratio Decidendi: 1. The court distinguished between pleas that tend to show that a decree is a nullity and pleas that merely challenge the validity or propriety of the decree on the ground that it is contrary to the provisions of law. Only pleas that establish the decree as a nullity can be entertained in execution proceedings. 2. Non-compliance with Section 164, which requires notice to be given prior to instituting a suit against a co-operative society, does not render the decree a nullity. It is a defect that affects the maintainability of the suit but not the inherent jurisdiction of the court. 3. A decree passed contrary to the provisions of law, such as Section 164, is not a nullity and can be challenged only through the appropriate appellate process, not in execution proceedings.
Final Decision: The appeal was dismissed, and the executing court was directed to execute the decree without reservation.

JUDGMENT - 1. This second appeal arises out of execution proceedings adopted by the Respondent against the Appellant. The Respondent filed a suit in the Court of the Subordinate Judge, Delhi, against the Appellant and obtained a money decree in the sum of Rupees 1400 in respect of the amount claimed in the suit and a sum of Rs. 277.99 P. for costs. The decree was passed ex parte. After obtaining the decree the Respondent got it transferred to the Court of the Civil Judge, Junior Division, Erandol, and filed an execution application, being Regular Darkhast No. 14 of 1964, in the transferee Court. The Appellant filed objections thereto. The principal contention of the Appellant was that the Appellant Is a registered co-operative society and the suit was instituted without giving to the Registrar of Co-operative Societies the requisite notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, and that for this reason, the suit was not maintainable and the decree passed by the subordinate Judge was a nullity. This contention was negatived by the learned Civil Judge. Against this order the Appellant filed an appeal under Section 47 of the Code of Civil Procedure, 1908, to the District Court, Jalgaon. The appeal was disposed of by the learned Assistant Judge at Jalgaon. He held that this was not a question which affected the jurisdiction of the Court to pass the decree and it could not be gone into by the executing Court. The learned Assistant Judge, however, further observed:--

"this question cannot be gone into by the executing Court, and it must execute the decree as it stands, of course, subject to the objection about the jurisdiction."

He accordingly dismissed the appeal with costs. Against this order the Appellant has filed the present second appeal.

2. The only ground urged in this appeal is that as the Respondent instituted the suit without giving a notice as required by Section 164 of the Maharashtra Co-operative Societies Act, 1960, the trial Court had no jurisdiction to entertain the suit or to pass a decree therein and accordingly the decree sought to be executed was a nullity and incapable of execution.

2-A. Section 164 of the Maharashtra Co-operative Societies Act provides as follows:--

"Notice necessary in suits.

No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."

The section has limited operation and does not apply to all suits filed against a registered co-operative society but only to suits in respect of any act touching the business of the society. Assuming for the purposes of the present appeal, that the suit filed by the Respondent was a suit touching the business of the society, the question still remains whether the executing Court was entitled to go behind the decree. In Eana Harkishandas Lallubhai v. Rana Gulabdas Kalyandas, AIR 1956 Bom 513, it was held that in determining the jurisdiction of the executing Court to entertain pleas under Section 38 of the Code of Civil Procedure, 1908, it is always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenge the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is a nullity and so cannot be executed, it would be open to the executing Court to entertain the plea. On the other hand, if the plea is that the decree is contrary to law in the sense that in passing the said decree certain provisions of the law have been Ignored or contravened, that would not necessarily make the decree a nul

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Judicial Analysis

1970 Supreme(Bom) 55

IN THE HIGH COURT OF BOMBAYD.P.Madon, J.Appellants: Erandol Taluka Gramodyog, Utpadak Sahakari Society, ErandolVs.Respondent: Sunil Waste CorporationA.F.A.D. No. 955 of 1967 Decided On: 04.02.1970Counsels: For Appellant/Petitioner/Plaintiff: A.P. Vaze, Adv. for V.D. Malpani, Adv.

A decree passed without the requisite notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, is not a nullity and can be challenged only through the appropriate appellate process, not in execution proceedings.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
D.P.Madon, J.
Appellants: Erandol Taluka Gramodyog, Utpadak Sahakari Society, Erandol
Vs.
Respondent: Sunil Waste Corporation
A.F.A.D. No. 955 of 1967 Decided On: 04.02.1970
Counsels:
For Appellant/Petitioner/Plaintiff: A.P. Vaze, Adv. for V.D. Malpani, Adv.