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1996 Supreme(Ker) 186
Judges : J.B.KOSHY
Sankar Singh - Appellant
Versus
Hosdrug Housing Co-op.Society Ltd. - Respondent
Case No : C.R.P No. 124 of 1996
Decided On : 06/07/1996
Advocates Appeared :
H.B. Shenoy & Ashok B. Shenoy For Petitioner Kodoth Sreedharan For Respondent
The main legal point established is that the executing court must have pecuniary jurisdiction at the time of filing the execution petition, as required by S.76(a) of the Kerala Co-operative Societies Act.
Headnote:
Execution Petition - Realization of Decree Debt - Kerala Co-operative Societies Act, S.70, S.76(a) - The court discussed the provisions of S.70 and S.76(a) of the Kerala Co-operative Societies Act, which deem an award to be a decree of a Civil Court and provide for its execution in the same manner. The court interpreted the requirement of pecuniary jurisdiction for the executing court and its implications on the maintainability of the execution petition.
Fact of the Case:
The respondent filed an Execution Petition under Order 21 Rules 66, 72 and 82 of the Code of Civil Procedure for realizing the decree debt of Rs. 26,081/- with future interest, passed by the Assistant Registrar of Cooperative Societies, Hosdurg in A. R. C. No. 1058 of 1990 under S.70 of the Kerala Co-operative Societies Act.
Finding of the Court:
The court found that the Munsiff's Court, at the time of filing the execution petition, did not have pecuniary jurisdiction to execute the decree, rendering the execution petition not maintainable.
Issues: The issues raised included the maintainability of the execution petition under S.38 of the Code of Civil Procedure and the pecuniary jurisdiction of the Munsiff's Court.
Ratio Decidendi: The court held that the Munsiff's Court, lacking pecuniary jurisdiction at the time of filing the execution petition, rendered the petition not maintainable under S.76(a) of the Kerala Co-operative Societies Act.
Final Decision: The Civil Revision Petition was allowed, and the execution petition was deemed not maintainable.
Key Points: - The execution petition was held not maintainable because the Munsiff's Court lacked pecuniary jurisdiction at the time of filing. (!) - An award under S.70, if certified as required, is deemed a decree of a Civil Court and to be executed in the same manner. (!) [15000083580001] - The scope of "court of competent jurisdiction" is clarified to depend on whether the executing court would have jurisdiction to try the suit at the time of transfer, affecting both territorial and pecuniary limits. (!) (!) (!) - The amendment to S.39 and the concept that an award for money requires a court with appropriate pecuniary jurisdiction to execute. (!) (!) (!) - The petition was allowed to be continued only with fresh, proper proceedings, or re-presentation in a competent court. (!) - The judgment discusses that at the time of filing, the Munsiff's Court did not have the required pecuniary jurisdiction to execute the decree. (!)
How to determine the pecuniary jurisdiction of the executing court at the time of filing an execution petition under the Kerala Co-operative Societies Act?
What is the effect of an award under S.70 of the Kerala Co-operative Societies Act being deemed a decree of a Civil Court on its executability by the executing court with respect to pecuniary and territorial jurisdiction?
What are the permissible bases for maintaining or rejecting an execution petition when the executing court lacks pecuniary jurisdiction at the time of filing?
KoShy, J.
Revision Petitioner is the judgment debtor in E. P. No. 234 of 1994 in A. R. C. No. 1058 of 1990 on the file of the Munsiff s Court, Hosdurg. Respondent is the decree-holder in the said Execution Petition. The Execution Petition was filed by the respondent under Order 21 Rules 66, 72 and 82 of the Code of Civil Procedure for realising the decree debt by sale of immovable property. The decree sought to be executed is an award for a sum of Rs. 26,081/- with future interest, passed by the Assistant Registrar of Cooperative Societies, Hosdurg in A. R. C. No. 1058 of 1990 under S.70 of the Kerala Co-operative Societies Act. Under S.76 of the Kerala C-op. Societies Act read with R.72 of the Kerala Co-operative Societies Rules, an award made under S.70 of the Act, if not carried out on a certificate signed by the Registrar or any person authorised by him in this behalf, be deemed to be a decree of a Civil Court and shall be executed in the same manner as the decree of such court. S.76 of the Kerala Co-operative Societies Act reads as follows:
"Every order made under sub-s.(2) of S.68 or under S.75 every decision or award made under S.70, every order made by the liquidator under S.73 and every order made by the Tribunal under S.82, S.84, S.85 or S.86 and every order made under S.83 shall, if not carried out
a) on a certificate signed by the Registrar or any person authorised by him in this behalf, be deemed to be a decree of a civil Court and shall be executed in the same manner as the decree of such Court; or
(b) where the order is for the recovery of money, be executed according to the law and under the rules for the time being in force for the recovery of arrears of public revenue due on land".
When notice was served on the petitioner several objections were raised regarding maintainability of the petition. Overruling the above, it was held in the impugned order dt.11.8.1995 that Execution Petition is maintainable. Even though several grounds were raised, now only two grounds are pressed by the petitioner and other grounds were given up.
2. The first ground is that under S.38 of the Code of Civil Procedure, only a decree can be executed either by the Court which passed the decree or by the Court to which it is sent for execution. In the instant case, the decree sought to be executed before the court below is not one sent for execution. Since the Assistant Registrar has passed the order, it is not an executable decrees. This question was not raised before the lower court. Apart from the above, in view of the clear provisions under S.76(a) of the Kerala Cooperative Societies Act, an award of the Tribunal on a certificate signed by the Registrar be deemed to be a decree of a Civil Court and it can be executed in the same manner. Therefore, there is no merit in the contention raised by the petitioner. Dealing provisions in S.7 of the Kerala Co-operative Societies Act will take care of the situation.
3. The second ground is that at the time when the execution petition was filed Munsiff 's Court has got jurisdiction to try suits upto Rs. 15,000/-. Since the principal amount is more than Rs. 20,000/- in this case the Munsiff 's Court has no pecuniary jurisdiction. S.76(a ) says that on a certificate issued by the Registrar, an award shall be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court. It was contended that such court means such a competent Court and therefore, the Court should be having territorial jurisdiction as well as pecuniary jurisdiction. The above objection was overruled by the learned Munsiff as it is not stated in S.76(a) of the Kerala Co-operative Societies Act that Court, which executes the award, should have pecuniary jurisdiction. This is disputed by the petitioner.
4. Respondent herein support the order of the learned Munsiff with the aid of various decisions. In Nandalal Ganguli v. Nrityakali Devi (AIR 1926 Calcutta 853), the Calcutta High Court
