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1976 Supreme(HP) 9
High Court Of Himachal Pradesh
D.B.LAL
NALAGARH DEHATI CO-OPERATIVE TRANSPORT SOCIETY LTD. - Appellant
Versus
SURAJ MANI - Respondent
Ex. Second Appeals Nos. 3 to 8 of 1975
Decided On : 03/29/1976
Bhawani Singh, for Appellants M.G. Chitkara, for Respondents.
A change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. However, the previous operation of an enactment so repealed will not be affected and any legal remedy which is already there will have to be carried on under the enactment as if the same was not repealed.
Headnote:
EXECUTION OF AWARD - PUNJAB CO-OPERATIVE SOCIETIES ACT, 1961 - HIMACHAL PRADESH CO-OPERATIVE SOCIETIES ACT, 1968 - SECTIONS 55, 63(A), 72, 73, 87 - HIMACHAL PRADESH GENERAL CLAUSES ACT, 1968 - SECTIONS 4(E), 6 - CIVIL PROCEDURE CODE, 1908 - SECTION 47 - AWARD DEEMED AS DECREE OF CIVIL COURT - EXECUTION OF AWARD AS DECREE OF CIVIL COURT - AMENDMENT OF SECTION 87 - REPEAL OF REMEDY - PREVIOUS OPERATION OF ENACTMENT - LEGAL PROCEEDING TO CONTINUE - CHANGE IN PROCEDURE - RETROSPECTIVE OPERATION - JURISDICTION OF EXECUTION COURT - OBJECTION TO AWARD - APPEARANCE ON FACE OF RECORD - LEGAL NOTICE - FRAMING OF ISSUES - EVIDENCE - SECOND APPEAL - SCOPE.
Fact of the Case:
The appellant and the respondent had a dispute under the Punjab Co-operative Societies Act, 1961, which was referred to arbitration. Awards were given against the respondent, and the awards were deemed to be decrees of a civil court and were executed in the same manner as decrees of such court. The appellant filed objections under Section 47 of the Civil Procedure Code, asserting that there was no dispute within the meaning of Section 55 of the Punjab Co-operative Societies Act, 1961, or its corresponding Section 72 of the Himachal Pradesh Co-operative Societies Act, 1968, and that the award was a nullity and without jurisdiction. The appellant also contended that a legal notice was not given to him and that the issues framed by the Courts below were wrong. The appellant further argued that Section 87 of the Act had been amended by the Himachal Pradesh Co-operative Societies (Amendment) Act 1972, and that the only mode of execution prescribed was by the Collector under a certificate signed by the Registrar for recovery of the amount as arrears of land revenue.
Finding of the Court:
The court held that the amendment of Section 87 of the Act was a case of repeal, and that under Section 4(e) of the Himachal Pradesh General Clauses Act, 1968, the previous operation of the enactment so repealed would not be affected and any legal proceeding which is already there will have to be carried on under the enactment as if the same was not repealed. The court also held that the objection that the award was without jurisdiction could not be raised in second appeal as it required evidence to sustain and did not appear on the face of the record. The court further held that the other objections raised by the appellant were either decided against him or had not been raised during the proceedings in the Courts below.
Issues: 1. Whether the amendment of Section 87 of the Himachal Pradesh Co-operative Societies Act, 1968, affected the execution of the award as a decree of a civil court? 2. Whether the objection that the award was without jurisdiction could be raised in second appeal? 3. Whether the other objections raised by the appellant were maintainable in second appeal?
Ratio Decidendi: 1. The amendment of Section 87 of the Act was a case of repeal, and under Section 4(e) of the Himachal Pradesh General Clauses Act, 1968, the previous operation of the enactment so repealed would not be affected and any legal proceeding which is already there will have to be carried on under the enactment as if the same was not repealed. 2. The objection that the award was without jurisdiction could not be raised in second appeal as it required evidence to sustain and did not appear on the face of the record. 3. The other objections raised by the appellant were either decided against him or had not been raised during the proceedings in the Courts below.
Final Decision: The appeals were dismissed without making any order as to costs.
1. These are six Execution Second Appeals and have been directed against the judgment of the District Judge, Solon who has upheld in appeal the judgment of the Senior Sub-Judge and thereby dismissed the objections of the appellant preferred under Section 47 of the Civil Procedure Code, The facts arising out of these appeals are not controverted and may, in brief, be stated as follows.
2. Under the Punjab Co-operative Societies Act, 1961, a dispute arose between the appellant and the respondent in respect of certain demand placed by the respondent upon the appellant and such disputes were referred to arbitration and awards were given against the respondent. Under Section 63 (a) of the Act the awards were deemed to be a decree of a civil court and were executed in the same manner as decree of such court. Accordingly the execution was solicited in the Court of the Senior Sub- Judge and after the necessary step of attachment etc., the property belonging to the appellant was likely to be sold in auction. At that stage objections under Section 47, Civil Procedure Code, were filed by the appellant and in these objections it was asserted that no dispute in the eye of law existed within the meaning of Section 55 of the Punjab Co-operative Societies Act, 1961, or its corresponding Section 72 of the Himachal Pradesh Co-operative Societies Act, 1968 which could be referred to the arbitrator. Therefore, the award was a nullity and it was even without jurisdiction. It was also stated that there was a collusion between the arbitrator and the respondent. Besides a legal notice was not given to the appellant and as such the award was a nullity. The learned Senior Sub-Judge refused to entertain the objections merely on the ground that as execution Court he could not go behind the decree. The appellant came in appeal before, the District Judge; but there too he remained unsuccessful. Now the present second appeals are filed against the judgment of the learned District Judge.
3. It is reiterated in second appeals that there was no dispute within the meaning of Section 72 which could be referred to the arbitration under Section 73 of the Himachal Pradesh Co-operative Societies Act, 1968. The award was a nullity and also without jurisdiction. A legal notice was not given to the appellant by the arbitrator. Besides, it is also contended that the issues framed by the Courts below were wrong. Another formidable objection is taken in second appeal with reference to Section 87 of the Act inasmuch as the said section has been amended by the Himachal Pradesh Co-operative Societies (Amendment) Act 1972 and Clause 1 (a) of Section 87 has been deleted and the only made of execution prescribed is by the Collector under a certificate signed by the Registrar for recovery of the amount as arrears of land revenue. In other words, contends the appellant, the award is no longer to be deemed a decree of the Civil Court and as such cannot be executed in the Court of the Senior Sub-Judge.
4. As regards the plea relating to the amendment of Section 87, during the pendency of appeal I think it would be a case of repeal for which S. 4 of the Himachal Pradesh General Clauses Act, 1968, will be applicable. Under Sec. 4 (e) of this Act the repeal shall not affect the previous operation of the enactment so repealed, nor would it affect any legal proceeding in respect of any liability incurred under the previous enactment. In other words, the legal proceeding has to continue as if the repealing Act had not been passed. There can be no doubt that it is a case of repeal of one remedy which is not substituted by another. Rather there were two remedies before; one, execution of the award as a civil court decree, and the other, realisation of the amount as arrears of land revenue. In its place now there is only one remedy, namely, the recovery of the amount as arrears of land revenue. The provision has been repealed and is not replaced by another provision, meaning thereby th
