1993 Supreme(MP) 658

A.R. Tiwari, J.
Sagar Co-operative Agricultural and Marketing Society v. M/s.
Kirloskar Brothers
C.R. No. 376 of 1993 (I); Decided on 26.10.1993*.

Headnote:(1) Civil P.C., 1908 -- S. 47 -- objection not taken at initial stage -- objection going behind the decree -- jurisdictional objection requiring enquiry on facts -objections rightly dismissed.

        (2) Co-operative Societies Act, 1960 (M.P.) -- Ss. 64 (1) (c) and 82 -whether a dispute falls under S. 64 (1) (c) and thus barrd under S. 82 to be tried by civil Court -- requires enquiry.

        ¼1½ flfoy izfdz;k lafgrk] 1908 & /kkjk 47 & vkifRrRr izkjafHkd izdze ij ugha mBkbZ xbZ & fMdzh ds ckn vkifRrRr & rF;kas dh tk¡p dh vis{kk djus okyh vf/kdkfjrk laca/kh vkifRrRr & vkifRrRr Bhd [kkfjt dh xbZA

        ¼2½ lgdkjh lkslkbVh vf/kfu;e] 1960 ¼e-iz-½ & /kkjk 64¼1½ ¼10½ rFkk 82 & D;k fookn /kkjk 64¼1½ ¼10½ ds v/khu vkrk gS vkSj bl izdkj /kkjk 82 ds v/khu flfoy U;k;ky; }kjk fopkj.k oftZr gS & tk¡p vk‘o;d gSA

        The ex parte money-decree was passed against the petitioner in COS No. 39-B/87 on 12.7.89. Thereafter, the decree was transferred to the Court at Sagar for its execution. The petitioner objected to the execution on the linchpin that the suit transaction was covered under S. 64 (1) (c) of the M.P. Co-op. Societies Act and as such it was not triable in Civil Court and barred in terms of S. 82 of this Act. On this fulcrum, it was contended that the Court which passed the decree lacked jurisdictional competence to take cognizance of the matter presented in the suit and as such the decree being without jurisdiction, was null and void. The other side oppugned the contention and criticised the conduct of the petitioner. It was pointed out that in the suit an order was passed in 1988 to proceed ex parte against the petitioner. On an application being made this order was latter on set aside and the proceedings were resumed bi parte. Later, the petitioner again absented itself as a result of which an ex parte decree was passed on 12.7.89. The petitioner then took recourse to the proceedings under Order 9 Rule 13 of the Code but later, these proceedings also stood anaesthetized on account of default of prosecution. At Sagar the petitioner took objection und"r S. 47 of the Code as regards untenability of the execution, being not in conformity with and in excess of the certificate of transfer on the question of quantum of interest. The petitioner thus participated and submitted to the jurisdiction. It is different matter that the objection on scrutiny was overruled and held to be non-meritorious. The order dismissing objection was upheld by the High Court. Tersely stated, the petitioner did not choose to attack the enforceability of the decree on the ground of nullity.

        Later the objection on the basis of provisions of M.P. Co-op. Societies Act was raised in Indore Court. The Court at Indore, however, rejected the objection by the impugned order. It is, this order which is under challenge in this revision petition.

        Held: The executing Court considered the objection in great detail and found it acarpous on the undernoted grounds-

        (a) The belated objection was put in after allowing termination of the proceedings under Order 9 Rule 13 of the Code on default.

        (b) The objection about lack of jurisdiction was a mixed question of facts and law and necessitated enquiry into facts to ascertain whether suit transaction properly fell under S. 64 (1) (c) of the M.P. Co-op. Societies Act and consequently, suffered embargo in terms of S. 82 of this Act. The investigation was not possible without going behind the decree and this was precisely forbidden by law. The suit claim, culminating into decree, was founded on bill which, as agreed between the parties provided for resolution of controversy through suit in civil Court. This then ceased to be a pure question of law.

        (b) The objection about jurisdiction was not raised at the earliest available opportunity either before Court at Indore or at Sagar. It was thus clearly an afterthought .and was introduced levishly to defeat the decree or in any case delay its execution.

        (c) The objection was raised after submission to the jurisdiction by insisting upon shrinkage of interest and declaration of untenability of execution on account of being not in conformity with and being in excess of the transfer certificate" Such an objection failed and the order so passed was upheld by the High Court.

        (d) The objection was hit by the provision as well. The questions entertain able under S. 47 of the Code, relating to the execution, discharge or satisfaction of the decree, are determinable by the Court executing the decree. This, however, did not mean that the provision was invokable umpteen limes at the whim of the objector.

        (e) The objection was inutile and futile in the face of course, conduct and contest. .

        On the aforesaid reasons, which did not carry the insignia of irrelevance or infirmity, the executing Court dismissed the objection as mala fide, afterthought and untenable in law.

        It is thus cogently clear that the consideration of objection depended only on scrutiny of facts and required investigative probe. Silence at appropriate stage could not grant licence for speech at inapt stage. It is thus clear that the Court below did not err in any manner in exercise of its jurisdiction vested in it by law.

        It needs to be emphasised that the provisions cannot be permitted to be used as weapon of oppression. Justice cannot be seen to cry in silence. Judicial proceedings are always in heed of finality. In fact, litigants are tired of waiting. Procedural" wrangle and delay, modem giant in the field of administration of justice, are hell-bent to erode faith in the system. This then needs to be combated with full vigour. Let law and justice Li"Ve in harmony. There ought to be no antinomy. No amount of pettifoggery could be permitted to put the clockback or utter nihilism about judicial verdict handed. down after repeated opportunities to the judgment-debtor. In such instances, no Court could fold hands and become helpless spectator. Even the procedure did not sanction course of "once more", System and commanded call of "no more". The conduct of judgment debtor is ex facie impeachable, rendering his request liable to be spurned. AIR 1954 SC 340, AIR 1977 SC 1201, AIR 1988 All. 225, AIR 1970 Orrisa 36,1966 JL.J SN 92, 1970 JL.J SN 3 and AIR 1984 AIL 169 distinguished. Revision dismissed.