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Judgment
J.V. Gupta, J.
This petition is directed against the order of the executing Court whereby the objection petition filed on behalf of the petitioner under section 47 read with section 151 of the Code of Civil Procedure and section 63(a) of the Punjab Cooperative Societies Act was dismissed.
The decreeholder, i.e. the Ladwa Cooperative MarketingcumProcessing Society Ltd., Ladwa, District Kurukshetra filed execution petition for the recovery of Rs. 56,884/84 paise, on the basis of the award dated 15.2.74 given by the Arbitrator and on the basis of which the necessary certificate dated 3.6.1975 under section 63 of the Punjab Cooperative Societies Act Ex. AW.1/1 was issued by the Assistant Registrar. The execution application was filed against judgmentdebtor No. 1 Gian Singh who was proceeded exparte and against his father Phool Singh who was alleged to be the surety for the amount decreed. Judgmentdebtor Phool Singh filed objection petition dated 11.11.1974 inter alia on the ground that he had stood surety for the judgmentdebtor, his son, only to the extent of Rs. 10,000/ and that he was not afforded any opportunity of being heard and thus, the award was illegal and a nullity and could not be executed as such. This objectionpetition was contested on behalf of the decreeholder. Ultimately, the executing Court framed as many as 5 issues. The objector was given many opportunities to lead evidence, but in spite of that, no evidence was led on his behalf, inasmuch as he himself also did not enter in the witness box. On the other hand, the decreeholder examined AW.10 Brij Bhushan and produced 2 documents, namely Ex. AW.1/1 certificate and Ex. A1 copy of the award. In the absence of any evidence led by the judgmentdebtor, the executing Court decided all the issues against the objector and thus, dismissed the objection petition. One of the objections was that since the objector was not a party to the arbitration proceedings, no execution could be taken against him, but the same was negatived by the executing Court, relying upon a judgments of this Court in Sunder Singh and another v. Central Cooperative Bank Ltd., Karnal, 1973 PLJ 433.
Dissatisfied with the same, the objector filed an appeal in the Court of the District Judge, Kurukshetra which was ultimately found to be not competent and as such, was dismissed, being not maintainable, vide order dated 5.9.1983. Consequently the revision petition against the order of the executing Court dated 8.4.1983, was filed in this Court on 27.10.1983. Along with the petition, an application under section 5 of the Limitation Act for condonation of delay was also filed. The petitioner also filed an affidavit of Shri Sat Pal Singh, Advocate, Kurukshetra, on whose advice, the appeal was filed in the Court of the District Judge. He has stated therein that it was he who had advised Phool Singh to file the appeal in the Court of the District Judge, Kurukshetra which was duly admitted to a hearing by the office without any objection having been raised.
At the time of motion hearing, the petitioner objector was directed to deposit a sum of Rs. 10,000/, because he admitted his liability to that extent. Consequently, the said amount was deposited by him on 29.11.83 in the executing Court. After the deposit of the said amount, the petition was admitted to a hearing after notice of motion.
The learned counsel for the respondentsociety raised a preliminary objection that the revision petition was barred by time and no ground for condonation of delay has been made out. According to the learned counsel, the mere fact that the appeal was filed on the wrong advice of the learned counsel, Shri Sat Pal Singh, was itself no ground for condonation of delay.
After hearing the learned counsel for the parties on the preliminary objection, I find that from the affidavit filed by Shri Sat Pal Singh, Advocate, Kurukshetra and the fact that the office of the District Judge, Kurukshetra entertained the appeal without raising any objection as to its maintainability, a case has been made out for the condonation of delay. The delay is accordingly condoned.
As regards the merits of the petition, the learned counsel for the petitioner contended that no award could be given under section 55 of the Punjab Cooperative Societies Act, because Gian Singh, judgmentdebtor was not a member of the D.H. Society. In support of his contention, a reference was made to a decision in Civil Writ Petition No. 414 of 1981, decided on 23.3.1981.
It was next contended that the executing Court did not go into the objections in view of the judgment of this Court in Sunder Singh v. Central Cooperative Bank Ltd. Karnal, 1973 PLJ 433, which was subsequently, overruled by the Full Bench, as reported in Ran Singh v. Gandhar Cooperative Society, 1975 PLJ 162. Thus, argued the learned counsel, on the basis of the Full Bench judgment, the case requires to be remanded for a decision afresh.
On the other hand, the learned counsel for the decreeholder relied upon Mam Raj v. State of Haryana, 1982 PLJ 84 and contended that Gian Singh was a member of the Societyjudgmentdebtor, which society in turn, was a member of decreeholder society and therefore, the award given was legal and valid one. It was further contended that the objectionpetition remained pending for about 2 years and in spite of the same, objector did not lead any evidence and ultimately, the Court had to close his evidence.
After hearing the learned counsel for the parties and going through the award and the Jamanat Nama dated 29.10.1969, I am of the considered view that the objection petition requires to be decided afresh, particularly when the executing Court did not go into the objections in view of the judgment of this Court which was overruled subsequently by the Full Bench decision, referred to above. However, it may be made clear that the matter will be gone into only as regards the extent of liability of the objector Phool Singh, since Gian Singh never appeared in the executing Court in spite of service and moreover, he admitted his liability before the Arbitrator. Thus, the matter to be decided by the executing Court would be as to the extent of the liability of the objector Phool Singh over and above Rs. 10,000/. Since the conduct of the objector earlier was such that he did not produce any evidence in spite of many opportunities afforded to him, he is burdened with Rs. 300/ (three hundred) as costs. He will be entitled to lead his evidence for which two opportunities will be afforded to him and that, too, on payment of the said costs.
The parties have been directed to appear in the executing Court on the 20th May, 1984. Records of the case be sent back forthwith.