Dwarka Prasad vs Traders Go-operative Bank Ltd.

Meredith, J.—This is a second appeal relating to an order passed in regard to as objection petition u/s 47, Civil P.C. The facts of the case are that the Traders-Co-operative Bank Ltd., Patna, had lent Rs. 1420 to one Dwarka Prasad, the pre* sent appellant. In 1931 the Bank obtained'' an award against the appellant and his sureties for this debt. The award was made on 3rd June 1931, by the Assistant Registrar, Co-operative Societies, under Rule 12(4) of the Rules framed by the Local Government u/s 43 of the former Act 2 of 1912. The award was for Rs. 1420 as principal, Rs. 73-15-0 as interest and Rupees 73-15-0 as penal interest, and provided that future interest at the rate of Rs. 10-8-0 per cent, per annum together with all costs up to the date of realization should be payable. In regard to this award Execution Case No. 2205 of 1932 was filed in the Court of the Second Munsif at Patna, but it was dismissed on 30th June 1933, apparently for default of the decree-holder.

There is nothing before us to show what happened between the parties from June 1933 until January 1938, when, on 3rd January 1938, a second award was passed by the Assistant Registrar, this time under the new Co-operative Societies Act (6 of 1935). This award was for Rs. 2215.2-0 on account of principal and interest. On 19th January 1938 an execution case was started upon this award in the Court of the Munsif at Patna, and on 10th February 1938, the appellant filed a petition of objection u/s 47, Civil P.C., taking the ground that the second award was a complete nullity and could not be executed as the Assistant Registrar had no jurisdiction to make two awards for one and the same debt. This objection succeeded before the learned Munsif; but on appeal the learned Additional District Judge, Patna, set aside the Munsif''s order and dismissed the petition of objection.

Having regard to the provisions of Section 57(3) of the Act of 1935, it is evident that the appellant cannot possibly succeed in his objection unless he can show that the award of the Assistant Registrar was wholly without jurisdiction. Section 57(3) is in the following terms:

No order of the Local Government, District Judge, Registrar, a person appointed to assist the Registrar, liquidator or an arbitrator or arbitrators, purporting to be one, which under any provision of this Act is declared to be final, shall be liable to be challenged, set aside, modified, revised, or declared void in any Court, upon merits or upon any ground whatsoever except want of jurisdiction.

The award, or rather the order, of the Assistant Registrar, with which we are concerned in the present case, is an order u/s 48 of the Act; and Clause (9) of that Section provides that:

Save as expressly provided in this Section, a decision of the Registrar, under this Section, and subject to the orders of the Registrar on appeal or review, a decision given in a dispute transferred or referred under Clause (b) or Clause (c) of Sub-section (2), shall be final.

The order is therefore one to which Section 57(3) is applicable. It may be mentioned that the appellant has made the appeal to the Registrar, which is referred to in Clause (a) of Section 48, and and we understand that since the decision of the Courts below this appeal has been dismissed by the Registrar. The question now for decision is whether the order of the Registrar, passed on 3rd January 1938, was without jurisdiction. As I have said, it is an order u/s 48. Section 48(1) provides:

If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises�(a)....(b) between a member, past member, persons claiming through a member, past member or deceased member or sureties of members, past members or deceased members, whether such sureties are members or non-members, and the society, its managing, committee or any officer, agent, or servant of the society; or (c)....(d)....such dispute shall be referred to the Registrar.

Then in Expl. (1) it is provided that:

A claim by a registered society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member or from sureties of members, past members or deceased members, whether such sureties are members or non-members, shall be a dispute touching the business of the society within the meaning of this Sub-section even in case such debt or demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment.

The appellant is still a member of the society in question. Section 51 of the Act provides that: ''

Orders passed under Sections 44, 48 and 80 shall, in addition to any other method of enforcement provided under this Act, on application, be enforced as follows : When passed by the Registrar, a liquidator or by an arbitrator or arbitrators, by any Civil Court having local jurisdiction in the same manner as a decree of such Court,

There is a second clause to this Section, with which we are not here concerned. The argument for the appellant is that once the Registrar had made the award, the debt merged in the decree, and limitation began to run under the Limitation Act as in the case of a decree.

It is argued therefore that before the date of the second award, the first award and the claim, which had merged in it had become time-barred, and so no longer enforceable. Therefore there was no dispute in existence, at the time the second award was made, and the Assistant Registrar had ''no .jurisdiction . to pass an order u/s 48. This argument, in my view, ignores; the provisions of Section 63 of the Act, which are as follows:

Notwithstanding any of the provisions of the Limitation-Act, i 808, 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.

Having regard to the terms of this provision, it seems to me that it cannot be said that the debt could have become barred by limitation. It is to my mind doubtful, having regard to this Section, whether even the first award itself could be said to have become unenforceable. But even if that be assumed to be so, it cannot be said that the claim no longer existed.

It will be recalled that Section 51 uses the words "in addition to any other method of enforcement provided under this Act;" and Section 52 shows that the award is not enforceable merely as a decree, but is something more : for Section 52 provides inter alia that any sum payable by any person or by any registered society, in accordance with an order, decision or award passed or made u/s 48, shall be recoverable as a public demand, in any area, in which the Bihar and Orissa Public Demands Recovery Act, 1914, is in force, or as an arrear of land revenue throughout the whole of the Province of Bihar and Orissa, and the Registrar or other person authorzied by him in this behalf, shall be deemed to be the person to whom such public demand is due or to whom such arrear of land revenue is payable. I have spoken as if the first award is one in regard to which it could be said that it became timebarred if the ordinary provisions with regard to limitation are applicable; but, actually, there is nothing to show that; and, in view of the fact that we do not know what happened between the parties between 1933 and 1938, that cannot be assumed.

For all we know payments may have been made in the interval, or there may have been acknowledgments. That something occurred is suggested by the fact that the second award is for a smaller amount than what would have been due upon the first, after making the full allowance for the interest provided.

However that may be, and whether it is to be held that the original award was enforceable or not, there can, in my view, be no doubt, having regard to the provisions of Section 63, that the claim still subsisted. If the claim subsisted and was not knowledged, there was clearly a ''dispute,'' having regard to Expl. 1 to Section 48, which I have quoted, and which gives a special and extended meaning to the word ''dispute.'' Once it is held that there was a dispute subsisting in 1938, I do not think it can be said that the Registrar or the Assistant Registrar had no jurisdiction to pass an order u/s 48.

There is nothing in the Act anywhere providing that the Registrar shall not have jurisdiction to make two awards with reference to the same dispute, and it seems to me that cases may conceivably arise when it would be advisable for the Registrar to make a second award; as for example, where uncertified payments have been made which the Registrar might be entitled to take into account, though the Civil Court could not. There is nothing in my view to prevent the Registrar in such circumstances giving a second award even if the dispute be substantially the same dispute. In a case like the present however the dispute inevitably will not be exactly the same. Fresh questions will have arisen between the parties, as they evidently did in this case, and there must be fresh questions requiring the Registrar''s decision, or we would not find his award being for a lesser sum than would have been due upon the old award. Having regard to these circumstances, this, in my opinion, cannot possibly be considered a case where the award of the registrar was a nullity as being wholly without jurisdiction. The appeal must therefore fail and I would dismiss it with costs.

Fazl Ali, J.

I agree. It is to be remembered that this case must be decided with reference to some of the peculiar provisions of the Bihar and Orissa Co-operative Societies Act. Section 63 of this Act provides that notwithstanding any of the provisions of the Limitation Act, the period of limitation for a 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. As the appellant is still a member of the society there is no question of limitation in this case. The next provision, which may be referred to, is Section 48 of the Act, which authorizes the Registrar to make an award in oases of disputes. As Expl. (1) of this Section shows, the expression ''dispute'' has been used in this Section in a very special sense.

Under this Section, a claim by a registered society for any debt or demand due to it from a member or a past member shall be a dispute even in case such debt or demand is admitted, and the only point at issue is the ability to pay or the manner of enforcement of payment. Thus, there might be a dispute under this Act even where the claim is admitted. As the word ''debt'' must include decretal debt, it appears to me that there is nothing to prevent the Registrar from dealing u/s 48 with a dispute between the parties as to a decretal debt. The Explanation shows that he may deal with the matter even where the only point at issue is the ability to pay or the manner of enforcing payment. Therefore, even where a previous award has been given, if there is still a dispute as to the judgment-debtor''s ability to pay, or the manner of enforcement of payment, the Registrar is competent to deal with the matter. The parties before us are agreed that though certain provisions of the CPC have been made applicable under special Sections, there is no Section of the Act which makes Section 11, Civil P.C., applicable to a dispute arising under this Act. Therefore, in my opinion, it cannot be said that if the Registrar has already made an award in respect of a debt, he can in no case make a second or a subsequent award in respect of the same debt.

Reference was made in the course of the argument to Section 51 of the Act. But Section 51 merely states that orders passed by the Registrar u/s 48 shall be enforced in the same manner as a decree of such Court. This Section does not help the appellant, because there is no question in this case as to the manner of enforcement of the award. In fact, the respondent is trying to enforce the award as a decree of the Court. The real question is whether a second award may be obtained in circumstances like those of the present ease in respect of the same subject-matter. That is not enforcement of an award but a different matter. As I have already stated, if Section 11, Civil P.C., is not applicable, the Act does not bar a subsequent award.

It is however to be remembered that a second award can be obtained only if there is an outstanding claim or debt due. Therefore, where the debt has been completely extinguished, I doubt whether the Registrar will have power to make a second award. This, in my opinion, is sufficient to explain the decision in Anjuman Debt v. T. Kehar Singh AIR (1936) Lah 901 which is relied on by the appellant. In that case there was a previous adjudication that the debt had become time-barred. The points raised on behalf of the appellant completely fail and the appeal must be dismissed with costs.