Srimati Haridasi Ghosh vs Motihari Town Co-Operative Society

James, J.—This appeal arises out of proceedings in execution of a decision of the Registrar of Co-operative Credit Societies made under Rule 12 of the rules framed u/s 43 of Act II of 1912, The son of the appellant is a member of the Motihari Co-operative Society and he took a loan furnishing three sureties, of which one was his mother. The Registrar by his decision has found the sureties liable to pay the debt. When his decision was filed in the Court of the Subordinate Judge in order that it might be executed, the appellant took the objection that she was not a member of the Society and so was not subject to the jurisdiction of the Registrar nor bound by his decision. The Subordinate Judge found that she was not a member and dismissed the execution petition against her. His decision was reversed on appeal by the Additional District Judge who pointed out that the appellant Srimati Haridasi Ghosh, in her objection before the Subordinate Judge, had stated that the award was a nuliity as being tainted with fraud, a question into which the executing Court could not enter. The learned District Judge pointed out that if a judgment-debtor objected that a decree was obtained by fraud, his remedy was to institute a regular suit and the matter could not be considered by the Court executing the decree.

Mr. S.N. Bose on behalf of the appellant points out that although the word fraud was used in the petition of objection, the main ground of the petition was that Srimati Haridasi Ghosh was not a member of the Society and so was not amenable to the jurisdiction of the Registrar. It is clear that under Rule 12 of the rules framed under s.43 of the Co-operative Societies Act, it is only members and persons claiming through members, against whom the Registrar can pronounce a decision which can be executed as a civil Court decree. The Society must enforce in the regular course any claim which it may have against outsiders. Therefore if Srimati Haridasi Ghosh is not a member of the, Society, the decision of the Registrar so far as it affects her, is a nullity as being made without jurisdiction. This is a question which the Court executing the decision must consider if it is raised by the person affected : Jungli Lai v. Ladduram Marwari 50 Ind. Cas. 529 : 4 P.L. 240 : (1919) Pat. 105 .

The learned District Judge has not discussed,the question of whether Srimati Haridasi Ghosh is a member of the Society or not; and as there is no finding of the lower Appellate Court on this point, we proceed to determine it u/s 103 of the Code of Civil Procedure. Srimati Haridasi Ghosh proposed in 1928 to become a member of the Society ; and she actually executed a mortgage bond in order to obtain a loan from it, wherein she was described as a member of the Society. She herself produces this bond and says that the proposed transaction failed because she declined ultimately to become a member of the Society and therefore the money could not be advanced to her. It is suggested on behalf of the respondent that her description in this bond as a member of the Society affords proof of the fact that she actually is a member ; but she has herself produced the bond and explained the circumstances in which it was executed. The respondent was called upon to produce the register of members of the Society ; but the register was not produced, and no evidence was adduced to show that this lady was actually ever a member of the Motihari Town Co-operative Society. In the circumstances we cannot do otherwise than accept the finding of the learned Subordinate Judge, that Srimati Haridasi Ghosh is not and has not been a member of the Society. That being so, the decision of the Registrar is not binding upon her and it cannot be executed against her as a decree.

The appeal will accordingly be allowed with costs throughout. The order of the lower Appellate Court is set aside and the order of the Subordinate Judge is restored.

Agarwala, J.

I agree.