Chander Singh and Others vs Kamalpore Co-operative Society

Fazl Ali, C.J.—These are two miscellaneous second appeals arising out of an execution proceeding and the points involved in them will be clear from the following brief statements of facts. One Site Singh, who is the father of appellant 1 and uncle of the other appellants, was a member of the Kamalpura Co-operative Society. This society owed money to the Central Co-operative Bank of Nawadah and, on the basis of this debt, the Assistant Registrar of the Co-operative Societies passed an award in favour of the Bank for recovering the amouut due to the Bank from the members of the Society, the extent of the liability of each member for this debt being specified in a schedule attached to the award. The award was put in execution in the certificate Court, but the certificate officer found that inasmuch as Sito Singh had died two years before the requisition for certificate was made, the claim of the Bank against that individual member of the Society was barred u/s 32, Bihar and Orissa Co-operative Societies Act. This decision was ultimately upheld by the Revenue Court. It appears that Sito Singh had executed two mortgage bonds in favour of the Kamalpura Co-operative Society on 22nd August 1928 and on 24th June 1927 respectively.

In connection with these bonds the Assistant Registrar passed mortgage awards in 1942 for the recovery of Rs. 654-4-0 and Rs. 439-9-0 respectively besides future interest against the appellants. The awards were put in execution in the Munsif''s Court at Gaya and two execution cases were started against the appellants. In these two cases the appellants contended that both the mortgage awards were ultra vires and with, out jurisdiction and the liability of the estate of Sito Singh, the deceased member of the Society, had ceased two years after his death which occurred on 17-1-37.

It was contended that inasmuch as the awards were passed nearly five years after the death of Sito Singh, the claim of the society was barred by limitation and there was no dispute within the meaning of Section 48, Co-operative Societies Act, to enable the Registrar to pronounce an award. Other objections were also raised by the appellants but it is unnecessary to refer to them because they have not been pressed in this Court. The Munsif overruled the objections and his decision was upheld on appeal by the Subordinate Judge. Hence these miscellaneous second appeals. The first point to be determined is whether the Assistant Registrar had any jurisdiction to pass the mortgage awards which are under execution. The learned advocate for the appellants relies on Section 82, Co-operative Societies Act, to support the view that the Registrar''s award is without jurisdiction. This Section runs as follows:

The liability of a past member or of the estate of a deceased member for the debts of a registered society as they existed on the date of his ceasing to be member or of his decease, as the case may be, shall continue for a period of two years from such date.

It is contended that the Registrar had no jurisdiction to deal with the two mortgages since in view of this provision Sito Singh''s estate had ceased to be liable two years after his death. In this connection a reference to Section 48 of the Act seems to be necessary. This Section provides that if a dispute arises among the classes of persons mentioned in the section, such dispute shall be referred to the Registrar. The explanation to the Section makes it quite clear that a claim by a registered society for any debt or demand due to it from a member, past member, etc., is a dispute touching the business of the society. The proviso to the section, however, states that no claim against a past member or the estate of a deceased member shall be treated as a dispute if the liability of the past member or of the estate of the deceased has been extinguished by virtue of Section 32 or Section 63.

It is contended that in the present case the liability of Sito Singh and his estate was extinguished by Section 32 and, therefore, there was no dispute to be referred to the Registrar u/s 48 and consequently the awards were without jurisdiction. This argument is based upon a misapprehension as to the exact meaning of Section 82. The crucial words in the Section are "debts of a registered society", which clearly mean the debts owed by the society and not the debts owed to the society. Thus, Section 32 refers only to those cases where the society is a debtor and not to those where it is a creditor. u/s 54 all sums due from a registered society to Government and all sums recoverable from a registered society under certain Sections of the Act may be recover, ed firstly from the property of the society; secondly, in the case of a society, the liability of the members of which is limited, from the members, past members or estates, of deceased members or their sureties subject to the limit of their liability; and, thirdly in the case of other societies from the members, past members, or estate of deceased members or their sureties to such extent or in such proportion as may be determined by the Registrar. This Section makes it clear that the sums due from the society may be recovered in certain cases not only from the property of the society, but also from the estate of deceased members. Section 32 in my opinion refers to the cases of this type and provides that in such cases the liability of the estate of the deceased member shall continue only for a period of two years from such date. This Section was therefore directly relevant to the previous dispute which arose between the Co-operative Bank of Nawadah and the Kamalpura Co-operative Society and it was accordingly held that the estate of Sito Singh could not be held liable as the liability was sought to be enforced more than two years after his death. The present case, however, is not a case in which the liability of the estate of deceased person is to be determined in connection with the "debts of the society." This is a case in which its liability is to be determined in connection with certain debts which the deceased member owed to the society. Such a case will be governed by Section 63 of the Act which provides that:

Notwithstanding any of the provisions of the Indian Limitation Act, the period of limitation for debt including interest due to a registered society by a member thereof shall be computed from the date on which such member dies or ceases to be a member of the society.

The language of this Section clearly brings out the distinction between the expressions "debts of a society" and "debts due to a society," the Section being clearly applicable to cases belonging to the latter category. In such a case, according to the section, the period of limitation is to be computed from the date on which the member dies. It was contended before us that the Co-operative Societies Act is a self-contained Act and the Limitation Act has no application to cases arising under it.

In my judgment the Section clearly means that the period of limitation prescribed in the Limitation Act for suits in regard to debts will be the period which will apply to claims made by the society to enforce its debts, but the period will be computed from the date of the death of the members of the society who are liable for the debts in question. If this interpretation is correct, it cannot be said that the mortgage-debts which are the subject of the mortgage awards were barred by limitation at the date when the award was pronounced. The award was, therefore, a good award and cannot be challenged in an execution proceeding. It was also contended by the learned advocate for the appellant that the decision in the previous case by which it was held that the estate of Sito Singh was not liable for the debts due to the Co-operative Bank of Nawadah from the Kamalpura Co-operative Society operated as res judicata and in this view the Registrar had no jurisdiction to pass an award. This argument also does not appear to me to be sound.

The previous award was with reference to a totally different debt and the; liability of Sito was a different kind of] liability. In the previous dispute he was sought to be made liable as a member of the society. In the present dispute he has been made liable as a mortgagor and as a debtor of the society.

In these circumstances there can be no question of res judicata.

In my opinion the order of the Court below is correct and I would accordingly dismiss these appeals with costs.

Ray, J.

I agree.