Bishan Singh vs Anjman Imdad Kafayat and Another

D.K. Mahajan, J.—This execution second a appeal has arisen in the following circumstances:-

An award for a sum of Rs. 898 was sought to be executed by Anjman Imdad Bahmi, Dhulkot against the appellants u/s 53 of the Punjab Co-operative Societies Act 14 of 1955. The appellants are the original judgment-debtor and one out of the two sureties. The appellants objected to the execution on the ground that the award was a nullity inasmuch as they had no notice, as required by rule 58 of the rules framed under the Act. This was the only ground pressed in the Courts below. The remaining grounds were not pressed. It was urged before the Courts below that if no notice, as required by rule 58 is given, the arbitrators have no jurisdiction to determine the matter. This plea, however, did not prevail with the Courts below because they took the view that the executing Court could not go behind the award which, according to the Co-operative Societies Act, is executable as a decree. It is against this decision that the present second appeal has been preferred by the appellants.

The contention of the learned counsel for the appellants is that as no notice under rule 58 was served, there could be no question of any valid appointment of an arbitrator u/s 50 and, therefore, the determination of the alleged dispute u/s 50 would be wholly without jurisdiction and thus a nullity The learned counsel relies on the decisions in AIR 1942 129 (Lahore) and Abdul Ghani v. Anjuman-i-Imdad Qarza Bahami Chak No. 127 AIR l942 Lah. 217 : 41 P.L.R. 373. Mr. Justice Tek Chand, with whom Beckett J. agreed in Abdul Ghant''s case AIR l942 Lah. 217 : 41 P.L.R. 373, observed as follows: -

In the present case, the position is substantially the same. Here also, the liquidator had passed an order without notice to the appellant. Further, he hid passed the order at a time when the appellant was under no liability whatever to contribute to the assets of the Society, the liability having been extinguished more than a year earlier when he was granted an absolute discharge by the Insolvency Court. The order of the liquidator was made in excess of the limit of his jurisdiction and the civil Court was justified in rejecting the application for its execution.

The learned Judges did rely upon the earlier decision of that Court in AIR 1942 129 (Lahore) . The learned counsel for the respondents, on the other hand, places reliance on the decision in AIR 1939 40 (Lahore) . This is the same decision on which the Courts below have based their judgments. This decision was noticed in AIR 1942 129 (Lahore) but its correctness was not doubted. It appears that AIR 1939 40 (Lahore) does not run counter to the rule laid down in the two Division Bench decisions already referred to above. So far as I am concerned, I am bound by the Bench decision of the Lahore High Court and, therefore, effect must be given to the contention of the learned counsel for the appellant.

I may also bring to the notice of the Courts below the salutary rule laid down by Din Mohammad J. in AIR 1942 129 (Lahore) The learned Judge, at page 132 of the judgment, observed as follows:

Moreover, I am disposed to consider that most of these judgments which insist on a separate suit being brought for the purpose of avoiding a decree have ignored the provision as contained in subsection (2) of section 47, Civil Procedure Code, which clearly lays down that : The Court may subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fee.

If the executing Courts keep this provision in mind, much hardship and inconvenience will be saved. The objection is after all a technical one and if an executing Court comes to the conclusion that in its view a separate suit is maintainable, instead of dismissing the objection raised on behalf of the aggrieved persons it should at once exercise its powers under sub-section (2) of section 47 and convert the proceeding into a suit so long as no question of limitation and jurisdiction arises in the matter.

In the circumstances of this case, the proper order to pass is that the matter should go back to the executing Court to determine the question whether any notice under rule 58 was served on the appellants. If no notice was served, the award will not be capable of execution; but if a notice was served, the award will be executable.

For the reasons recorded above, this appeal is allowed, the judgments of the Courts below are set aside and the case is remitted to the executing Court for fresh determination in the light of the observations made above. The costs will be costs in the cause. The parties are directed to appear in the executing Court on 1st December, 1965.