Someswara Swamy Vari Devasthanam vs Dasam Suryanarayana and Others

G. Yethirajulu, J.—This revision petition is filed against the order of the Subordinate Judge, Tanuku in E.P. No. 30 of 1987 in O.S. No. 19 of 1974.

The 1st respondent society was given some land of the first petitioner for establishment of a college on a condition that the society shall deposit Rs. 1,50,000/-with Temple as a corpus and the interest accrued thereon shall be treated as the rent for leasing out the property to the 1st respondent society for a period of 30 years. There was a delay of 11/2 years in deposit of Rs. 1,50,000/- after delivery of the property to the 1st respondent.

The revision petitioner filed a suit against the respondents for realisation of the amount due towards interest on the amount from the date of possession till the date of deposit, being the loss suffered by the first petitioner due to delayed payment of the said amount. The lower Court decreed the suit for Rs. 39,703.27 with interest and costs. The petitioner filed E.P. No. 62 of 1981 for realisation of the amount by way of attachment and sale of the property of the 2nd judgment debtor. That reached the stage of sale and when the property was actually brought for sale there were no bidders, therefore, the lower Court dismissed the said execution petition for want of bidders. Subsequently the revision petitioner filed E.P. No. 30 of 1987 once again bringing the properties of the 2nd judgment debtor for sale. The 2nd judgment debtor questioned the maintainability of the execution petition contending that there is a statutory bar u/s 8 of the Societies Registration Act, 1860 (for short "the Act"). Though similar objection raised in the earlier execution petition was rejected, the lower Court found some force in the objection raised by the 2nd judgment debtor and accordingly dismissed the execution petition on the ground that it is not maintainable due to the bar provided u/s 8 of the Act. The revision petitioner being aggrieved by the order of the Lower Court, preferred this revision challenging its validity and legality.

The point for consideration is whether the execution petition is maintainable against the respondents in view of the bar provided u/s 8 of the Act?

The revision petitioner filed the suit against the society and its office bearers by mentioning their names. The suit was decreed against all of them. The respondents contend that since there was no decree against the Respondents 8 to 11 in their individual capacity, the decree cannot be enforced against them and the execution petition cannot be maintained.

The learned Counsel for the revision petitioner submitted that since the Respondents 8 to 11 are sued by name, they are liable to pay the decretal amount jointly and severally. He further submitted that though the designations of the Respondents 8 to 11 are shown in the cause title of the plaint, it is only for the purpose of identification of the individuals and not to indicate that they were sued in their official capacity. The lower Court by taking into consideration of the respective pleas and after referring to case law on the subject, came to a conclusion that the personal property of the 2nd judgment debtor cannot be brought to sale and the execution petition against the 2nd judgment debtor for bringing his personal properties for sale for realisation of the decretal amount, is not maintainable.

Section 8 of the Act reads as under:

"If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable or against the body of such person or officer, but against the property of the society.

The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society."

The wording of the above section is clearly indicating that whenever there is a decree against the society, the members of the society cannot be made liable for the payment of debt due from the society and the decree cannot be enforced against the members of the society in their individual capacity.

In Swami Satchitanand and Others Vs. The 2nd Addl. Income Tax Officer, Kozhikode and Others, , the Kerala High Court held that a society registered under Societies Registration Act is a legal entity. It is capable of suing and being sued as such. A tax imposed on a Society, though it has been styled as an ''Association of persons'' is still a tax on the society and not on its members. It is not possible, therefore, to say that the tax imposed on a Society is a tax imposed on the members of the Society.

In K.C. Thomas Vs. R.L. Gadeock and Another, , a division bench of Patna High Court while considering the scope of Section 8 of the Societies Registration Act, held that a registered Society can sue and be sued in its own name, can own its own property and can employ its own servants. Any person agreeing to serve under the Society or in any of its institutions must be deemed to hold the post under the Society. A society registered under the Act may not be a body corporate, quite distinct from its members.

In Chanumolu Anil Kumar v. Vasu Cotton and Ginning Mills 1989 (2) APLJ 196. It is laid down that in the suit against a Company and its Directors, which is decreed, in the absence of any fraud or other allegations, the decree cannot be executed against the Directors. It is open to the executing Court to construe the decree as a decree against the Company alone and not against the Directors.

In the case covered by the above decision, the Directors were also shown as defendants describing them in their capacities in their Companies and the decree directs "the defendants" to pay the decree amount. The Court held that such a decree cannot be considered as a personal decree and a decree cannot be passed against the Directors and such decree would be a nullity.

In Devuri Appala Raju v Kolli Ramayamma 1983 (1) ALT 420, a Single Bench of this Court held that a decree passed against the personal property of the legal representatives in violation of Section 52 C.P.C. is a nullity and therefore in executable.

Section 8 of the Act which imposes a bar for imposing liability on the members of the society and the decree passed against the members of the society in their individual capacity is a nullity. The decree passed" against the office bearers of the society cannot be up held as the decree against them in their personal capacity.

In the light of the above legal position and in view of the bar provided u/s 8 of the Act, there is no personal decree against the Respondents 8 to 11 and the decree passed by the lower Court in O.S. 19 of 1974 is a nullity and unenforceable under Law. When once the decree becomes a nullity, it cannot be executed through the execution proceedings against the personal property of the 2nd judgment debtor. The lower Court therefore, rightly came to a conclusion that the execution petition cannot be maintained against the personal properties of 2nd judgment debtor. I do not find any grounds to interfere with the order of the lower Court.

The revision petition is, accordingly,