Koddiyarpattu Co Operative, Agricultural Producers And Sales Society, Ltd., Mutur V. Abdul Hameed

1961 Present : Weerasooriya, J.

KODDIYARPATTU CO-OPERATIVE, AGRICULTURAL
PRODUCERS AND SALES SOCIETY, LTD., MUTUR,
Appellant, and ABDUL HAMEED et al.
Respondents

S. C. 242-C. R. Trincomalee, 802

Co-operative Societies Ordinance (Cap. 107)-Section 45 (2)-Award of arbitrator- Procedure for its enforcement-. Rule 38 (13) framed under s. 46 (2).

By rule 38 (13) of the rules made under section 46 (2) of the Go-operative Societies Ordinance :-

'' A decision or an award shall on application to and civil court having juris- diction in the area in which the society carries on business be enforced in the same manner as a decree of such court."

Held, that an application under rule 38 (13) for the enforcement of an award shall be by petition and affidavit in proceedings by way of summary procedure under Chapter XXIV of the Civil Procedure Code. The award cannot be enforced by way of a regular action.

APPEAL from a judgment of the Court of Requests, Trincomalee.

E. R. S. R. Coomaraswamy, with H. Mohideen, for the plaintiff-appellant.

No appearance for the defendants-respondents.

Cur. adv. vult.

May 5,1961. WEERASOORIYA, J.-

The plaintiff-appellant is a co-operative society registered under the Co-operative Societies Ordinance (Cap. 107). On a reference to arbitration under section 45 (2) of that Ordinance an award was given directing the defendants-respondents to pay a sum of Rs. 280/28 to the plaintiff. This award the plaintiff sought to enforce by filing on the 19th August, 1955, an action by way of regular procedure against the defendants for the recovery of the amount due. In the answer of the defendants various defences were taken attacking the validity of the award. After trial the learned Commissioner of Requests delivered judgment dismissing the action with costs, one of the grounds for doing so being that the award was bad as there was no proof that the reference to arbitration was of a dispute touching the business of the plaintiff. From this judgment the plaintiff has appealed.

Rule 38 (13) of the rules made under section 46 (2) of the Co-operative Societies Ordinance, and published in Government Gazette No. 10,086 of the 24th March, 1950, is in the following terms :

" A decision or an award shall on application to any civil court having jurisdiction in the area in which the society carries on business be enforced in the same manner as a decree of such court."

This rule, it will be observed, does not specify the procedure to be adopted in applying for the enforcement of the award as a decree of Court. The question as to the correct procedure has been the subject of conflicting judicial opinion, but in the recent case of Bandahamy v. Senanayfike[1 (1960) 62 N. L. R. 323. ] the majority of a divisional bench of seven Judges held that the correct procedure is as stated by a divisional bench of three Judges in Jayasinghe v. Boragodawatte Co-operative Stores,[2 (1955) 56 N. L. R. 462,] which had affirmed the decision in de Silva v. Galkissa Wattarappola Co-operative Stores Society[3(1953) 54 N. L. R. 326.] The effect of these decisions is that an application under rule 38 (13) for the enforcement of an award should be by petition and affidavit in proceedings by way of summary procedure under Chapter XXIV of the Civil Procedure Code.

The only authority that learned counsel for the plaintiff was able to cite in support of the procedure adopted in the present case is an obiter dictum of Gratiaen, J., in the last mentioned case, that one of the courses open to a person applying to enforce an award is to do so " in a regular action ". But it was the alternative procedure laid down in the same case -of applying by petition and affidavit by way of summary procedure- that was adopted by the bench of three Judges (of whom Gratiaen, J., himself was one) in the subsequent case of J

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