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Judgment
B.S. Patil, J.—A short question that falls for consideration in these petitions, is:-
whether an appeal lies to the Karnataka Appellate Tribunal, against order of attachment of property before passing of the award u/s 103 of the Karnataka Co-operative Societies Act, 1959, as provided u/s 105(1)(e) of the Act?
The controversy has arisen, as the Karnataka Appellate Tribunal (for short, ''the Tribunal'') has held that only against orders of attachment passed by the Registrar u/s 103 of the Karnataka Co-operative Societies Act, 1959 (for short, ''the Act''), in execution proceedings for execution of an award or order passed under Sections 69 or 71 of the Act, appeal to the Tribunal would lie, and in respect of all other orders of attachment made u/s 103 of the Act, appeal would lie to the superior officer as provided u/s 106(1)(m) of the Act.
In the light of this controversy, it is necessary to refer to Sections 103, 105(1)(e) and 106(1)(m) of the Act.
Section 103 of the Act, is a provision made for Attachment of property before award or order. It reads as under:
Attachment of property before award or order.- (1) If the Registrar is satisfied on an application, report, enquiry or otherwise, that any person with intent to delay or obstruct the enforcement of any order, decision or award that may be made against him under the provisions of this Act,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the jurisdiction of the Registrar, the Arbitrator or Liquidator, as the case may be,
he may, unless adequate security is furnished, direct the attachment of the said property; and such attachment shall have the same effect as if made by a Competent Civil Court.
(2) Where the Registrar directs attachment of the property under sub-section (1), he shall issue a notice calling upon the person whose property is so attached to furnish security which he thinks adequate within a specified period; and if the person fails to provide the security so demanded, the Registrar may confirm the order and after the decision in the dispute or the completion of the proceedings referred to in the foregoing sub-section may direct the disposal of the property so attached towards the claim if awarded.
(3) Attachment made under this section shall not affect the rights, subsisting prior to the attachment of the property, of persons not parties to the proceedings in connection with the attachment is made, or bar any person holding a decree against the person whose property is so attached from applying for the sale of the property under attachment in execution of such decree.
(emphasis supplied by underlining)
A perusal of this provision makes it clear that this Section provides for attachment of property before passing of an award or an order. Therefore, attachment u/s 103 of the Act, is in respect of pending proceedings where the Registrar is satisfied that a person with an intention to delay or obstruct the enforcement of any order, decision and award that may be made against him under the provisions of this Act, is about to dispose of the property, or is about to remove the property from the jurisdiction of the Registrar, he may direct attachment of the property unless adequate security is furnished.
(underlining supplied)
Section 105 of the Act, deals with Appeals to the Tribunal. Section 105(1)(a) to (d) of the Act, provide remedy of appeal to the Tribunal against the decision of the Registrar, any other Officer, Arbitrator & Liquidator, passed under Sections 71(1)(a), 71(1)(b), 71(1)(c) & 74(2)(f) of the Act, respectively.
Section 105(1) of the Act, reads as under.
Appeals to the Tribunal.- (1) Any person aggrieved by,-
(a) any decision of the Registrar made under clause (a) of sub-section (1) of Section 71; or
(b) any decision of the person invested by the State Government with powers in that behalf under clause (b) of sub-section (1) of Section 71;
(c) any award of an Arbitrator under clause (c) of sub-section (1) of Section 71; or
(d) any determination of a Liquidator under clause (f) of sub-section (2) of Section 74;
(e) any order made u/s 103 with a view to preventing any delay or obstruction in the execution of any order, decision or award that may be made under Sections 69 & 71;
(f) .........
may, within sixty days from the date of the decision, award or order, as the case may be, appeal to the Tribunal.
It is thus clear from a perusal of Section 105 of the Act, that against any order passed u/s 69, and against an award passed by the arbitrator u/s 71 or a decision of the Registrar u/s 71, as appeal lies to the Tribunal. Similarly as per Section 105(1)(e) an appeal lies to the Tribunal against attachment of property before award or order, passed u/s 103 of the Act. The order of attachment referred to here is an attachment made with a view to prevent delay or obstruction of execution of any order, decision or award that may be made under Sections 69 & 71 of the Act.
There is yet another provision u/s 106 of the Act, which provides for appeals to other authorities, whereunder also, as per Section 106(1)(m) of the Act, an order of attachment made by the Registrar u/s 103 is appealable, provided it is not an order referred to in Section 105(1)(e) of the Act.
Thus, what emerges is, against the orders of attachment passed before passing an award/order, two appellate forums are provided. One is the Tribunal, and the other is the Superior Authority to the one who has passed the order of attachment. Appeal to the Tribunal lies, if an order of attachment is passed in a proceeding under Sections 69 & 71 with a view to prevent any delay or obstruction in the execution of any order, decision or award that may be made there. In respect of other orders of attachment passed u/s 103, not covered u/s 105(1)(e), appeal lies to the immediate superior.
The Tribunal has misconstrued the provision in holding that appeal u/s 105(1)(e) lies, where the execution proceedings for enforcement or implementation of the award passed by the Registrar or Arbitrator have initiated and in such proceedings attachment of the property has been ordered. Whereas, in other cases, where attachment has been ordered u/s 103, appeal lies to the superior authority. On this analogy, the Tribunal has held that a simple order of attachment of property before passing award cannot be challenged before the Tribunal by way of appeal u/s 105(1)(e) of the Act.
As already adverted to above, orders of attachment that are passed u/s 103 are orders passed during the pendency of the proceedings and before passing of the award/order. Section 103 does not refer to orders of attachment passed during the course of execution proceedings. On the other hand, such attachments are dealt with by Sections 101 to 102. Therefore, there is no justification to hold that Section 105(1)(e) refers to orders of attachment passed in execution proceedings and not the one passed during the pendency of the award proceedings.
The language of the statute has to be understood as it is by referring to the words used without adding or deleting anything from it. It cannot also be presumed that the legislature has omitted to say something when there is nothing to indicate such omission. If this is kept in mind, a plain reading of Sections 103, 105(1)(e) & 106(1)(m) of the Act, would make it clear that wherever an order of attachment before award or order is passed by the authority in a proceeding under Sections 69 & 71, then appeal lies to the Tribunal. If an order of attachment before passing an order or award is made in any other proceeding, then an appeal would lie to the superior authority and not to the Tribunal.
Therefore, in my view, the impugned order passed by the Tribunal does not lay proper construction on the aforementioned provisions of the Act. The understanding of the provision by the Tribunal is not consistent with the intention of the legislature in enacting the above provisions. Therefore, the order passed by the Tribunal deserves to be set aside.
These writ petitions are allowed. Impugned order is set aside. The matter is remitted to the Tribunal for consideration on merits, in accordance with law.