Vettimoodu Milk Producers'' Co-op. Society Ltd. and Other vs Catholic Syrian Bank Ltd.

P.K. Balasubramanyan, J.—The petitioners herein are the judgment - debtors in O. S. No. 314 of 1990 on the file of the Subordinate Judge''s Court, Muvattupuzha. The respondent Bank obtained the said decree against the judgment-debtors for realization of a sum of Rs. 1,08,343.60. The first revision petitioner is a Co-operative Society coming within the purview of the Kerala Co-operative Societies Act. Petitioners 2 and 3 respectively are the President and the Secretary of the said society. The decree granted to the respondent Bank is a decree charged on the properties of the society. The respondent decree-holder filed E. P. No. 116 of 1992 for execution of the decree. On receipt of notice under Order 21 Rule 66 of the CPC the petitioners herein attempted to raise a contention that the execution petition is not maintainable, since the decree that is sought to be executed is a nullity as the court which passed the said decree lacked inherent jurisdiction to pass that decree against the Co-operative Society and its President and Secretary. This objection to execute ability of the decree was overruled by the executing court and hence the petitioners have come up with this Civil Revision Petition.

According to the petitioners the loan was availed of from the respondent Bank for the purchase of cattle feed and for the construction of a chilling plant. The first petitioner is a Milk Producers'' Co-operative Society. According to the petitioners the Bank released the amounts prematurely and not in terms of the agreement and therefore the Society was not liable for that part of the amount advanced for the purpose of erection of the chilling plant. The respondent Bank had filed the suit for recovery, as noticed, The petitioners filed a detailed written statement disputing the liability. But no objection was raised to the jurisdiction of the court to entertain the suit. Subsequently the petitioners withdrew their contentions and allowed the suit to be decreed. A decree was passed not only against the first petitioner society but also personally against petitioner No. 2, the President of the Society. There were attempts by the members of the Society to challenge the liability by approaching this court under Article 226 of the Constitution of India but all the said attempts failed. It is at that stage that the judgment - debtors - the petitioners here in, raised the contention in the executing court that the decree passed by the Civil Court is a nullity and hence could not be executed. It is argued on behalf of the petitioners that the jurisdiction of the Civil Court to entertain the suit O. S. No. 314 of 1990 was barred u/s 100 of the Co-operative Societies Act. Section 100 of the Act provides that no Civil or Revenue Court shall have any jurisdiction in respect of any matter for which provision is made in the Co-operative Societies Act. According to the petitioners the dispute between the petitioners and the respondent Bank is a dispute that touches the business of the society within the meaning of Section 2(1) (d) of the Act and hence notwithstanding anything contained in any law for the time being in force, such a dispute could be resolved only by the Registrar of Co-operative Societies in view of Section 69 of the Co-operative Societies Act. The court below has negatived the plea of the petitioners on the ground that such question not having been raised in defense to the suit and the petitioners having suffered the passing of the decree are barred by resjudicata from raising this question in execution of the decree. The court below has also held that it cannot be said that the dispute involved in the suit was one falling within the ambit of Section 2(1) (d) of the Kerala Co-operative Societies Act and consequently u/s 69 of that Act. The correctness of this order of the executing court is in challenge. It is settled by the decision of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, and the decision reported in Sunder Dass Vs. Ram Prakash, that the executing court has the jurisdiction to entertain a plea that the decree sought to be executed is a nullity on the ground that the Civil Court had no inherent jurisdiction to entertain the suit in which the decree was passed and consequently the decree was a nullity. It is also settled that the invalidity of the decree sought to be set up should be apparent and it is not within the province of the executing court to go into a roving enquiry to find out whether the decree sought to be executed suffered from any defect of jurisdiction. In the present case the question whether in the nature of the transaction between the first petitioner society and the respondent Bank, there arose a dispute as defined in the Co-operative Societies Act is a question that would depend upon the Investigation into the facts to determine the nature of the transaction between the Society and the first respondent Bank including the purpose for which the loan was obtained and the object for which the society was formed. It cannot therefore be said that the question of absence of jurisdiction in the court that passed the decree was apparent or that the Civil Court lacked inherent jurisdiction to entertain the suit filed by the respondent. The petitioners not having raised the plea of want of jurisdiction in the Civil Court during, the trial of the suit, they would be barred by resjudicata from raising the contention during the execution of the decree. I am therefore inclined to agree with the conclusion of the executing court on that question. Equally in my view, there is no sufficient material to come to the conclusion that the dispute between the respondent and the first petitioner society is a dispute as defined in Section 2 (1) (d) of the Kerala Co-operative Societies Act. The executing court has referred to the relevant decisions of this court to come to the conclusion that it has not been shown that the dispute was one touching the business of the society. The learned counsel for the revision Petitioners with reference to the decision of the Bombay High Court reported in Farkhundail v. V. B. Potudar (A. I. R. 1962 Bombay 162) and Vijaya Kumar v. Ramapuram A. S. I. Co-operative Society (1992 (1) K. L. T. 169) submitted that the word touching the business of the society is of wide import and would include a matter which relates to, concerned or affects the business of the society. The learned counsel for the respondent on the other hand with reference to the decision of the Supreme Court reported in Deccan Merchants Co-operative Bank Ltd. Vs. Dalichand Jugraj Jain and Others, submitted that the word business is used in a narrower sense and it means actually trading or commercial or similar activities of the society and does not mean affairs of a society. The submissions on this aspect only indicates that the question whether the dispute between the petitioners on the one hand and the respondent Bank on the other was a dispute within the meaning of Section 2(1) (d) of the Co-operative Societies Act was an issue that had to be decided on the facts of this case with reference to the by - laws of the society, the provisions of the Act, the nature of the business carried on by the society, the nature of the borrowing, the purpose for which the amounts were borrowed and the other relevant aspects. In other words, this was a question that depend upon the facts to be pleaded and adjudicated upon by the court before the court could decline jurisdiction on the ground that the dispute between the parties is one coming within the purview of Section 69 of the Kerala Co - operative Societies Act. The petitioners not having agitated these questions before the court which passed the decree are precluded from inviting the executing court to go into these questions and to come to the conclusion that the decree that is sought to be executed is a decree that was passed by a court lacking inherent jurisdiction. More over on the materials new available I am not satisfied that I would be justified in Interfering with the findings of the executing court that it has not been shown that the dispute between the petitioners and the respondent Bank is a dispute coming within the purview of Section 69 of the Kerala Cooperative Societies Act.

In the light of what I have stated above, 1 find no reason to interfere with the order of the executing court. I dismiss this Civil Revision Petition. But in the circumstance I make no order as to costs.