Ekanayaka V. Prince Of Wales Co Operative Society, Ltd.

1949     Present: Nagalingam and Windham JJ.

EKANAYAKA, Appellant, and PRINCE OF WALES
CO-OPERATIVE SOCIETY, LTD., Respondent.

S. C. 113-D. C. (Inty.) Colombo, 480

Co-operative Societies Ordinance-Liquidation of society--Dispute between liquidator and president of society-Reference to arbitration-Award- Application for execution-Power of court to inquire into validity- Chapter 107-Section 40 (1) (d)-Rule 29 of rules under old Ordinance.

Held : (i) The liquidator of a co-operative society does not come within any of the categories referred to in rule 29 (a) of the rules framed under Ordinance No. 34 of 1921, and a dispute to which the liquidator is a party cannot be referred to arbitration under that rule.

(ii) Under section 40 (1) (d) of the Co-operative Societies Ordinance a dispute cannot be referred to arbitration by the liquidator except with the consent of the other party.

(iii) Where application is made to execute an award which is invalid for want of jurisdiction it is open to the executing court to refuse to execute it.

APPEAL from a judgment of the District Judge, Colombo.

H. V. Perera, K.C., with C. Thomas, for the appellant.

J. R. V. Ferdinands, for the respondent.

Cur. adv. vult.

February 9, 1949. WINDHAM J.-

The defendant-appellant, until March 27, 1947, was the President of the Prince of Wales Co-operative Society, Limited, a society duly registered under the Co-operative Societies Ordinance (Cap. 107). On

that date the registration of the society was cancelled, and it went into liquidation, the plaintiff-respondent being the society in liquidation On April 8, 1947, the defendant was called upon to pay to the liquidator the sum of Rs. 2,174.50, said to be owing from him to the society. The defendant declined to do so. On September 4, 1947, a document was filed in the District Court, bearing date May 24, 1947, purporting to be an arbitrator's award made upon a reference under rule 29 of the Rules framed under the Co-operative Societies Ordinance, No. 34 of 1921 The defendant was ordered, in this document, to pay to the society the said sum of Rs. 2,174.50, together with interest and costs. Eventually, upon application on behalf of the plaintiff society, the document, on the' footing that it was an award, was made an order of the court, and writ of execution issued against the defendant. Notice was thereupon served upon the defendent under section 219 of the Civil Procedure Code. To this the defendant objected, arguing that he was not bound by anything in the document purporting to be an award, and that the " award " was a, nullity. The learned District Judge, after considering his objections dismissed them, in an order dated July 22, 1948. From that order the defendant now appeals.

The document purporting to be the award consisted of a printed form in which a number of spaces were left blank to be filled in. Some of these spaces were filled in; others were not. The document reads as follows :-

" AWARD.

Under Rule 29 of the Rules framed under the Co-operative Societies-Ordinance, No. 34 of 1921.

WHEREAS th

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