FIRM GOPALJI Vs. INDORE PREMIER CO-OPERATIVE BANK LTD.
HIGH COURT OF MADHYA PRADESH
Indore Premier Co -Operative Bank Ltd.
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Chaturvedi, J. -
(1.) THIS is an appeal filed by the judgment debtors against an order of the executing Court which held that the execution of the decree is within time. In order to understand and appreciate the points urged in this appeal it seems proper to refer to certain facts of the case. The Respondents, the Indore Premier Co -operative Bank Ltd., Indore, are a Co -operative society registered under the Indore Co -operative Societies Act (Act No. 5 of 1914), doing banking business. Defendant Gopalji Govindram was a member of this society and owed money to this society. As the manager of the joint Hindu family and as the manager of the family firm, he executed a certain document and on the basis of this document, the decree -holders put forth a claim against the Appellants.
To determine this dispute, Mr. D.P. Avadhoot a pleader, was invested with the powers of Registrar Co -operative Societies under Section 3 Indore Co -operative Societies Act (Act No. 5 of 1914). Rule No. 19 of the rules made under Section 43, Indore Co -operative Societies Act read as follows:
A dispute in respect of the business of the society between any person who
(a) is or has been a member of a society, or
(b) claims through any one who is or has been a member, and such society or its committee or any of its officers, shall be referred to the registrar for decision.
(2.) THE case appeared to be a rather complicated one and as many as nine issues were struck. The Registrar came to the conclusion that the Defendants were liable to pay Rs. 39,172 -2 -5 to the society, and after deducting various sums he held that the Plaintiffs were entitled to claim from the Defendants a sum of Rs. 28,053 as principal together with simple interest from 1 -1 -1936 till satisfaction of the Plaintiffs, claim. He then passed the following order:
I accordingly order that the Defendants shall pay to the Plaintiffs the above mentioned amounts within six months from the date of this order, failing which it shall be recovered by the Plaintiffs by the sale of the house mortgaged with the Plaintiffs as described below. It is further ordered that if the sale -proceeds fall short of the total claim of the Plaintiffs, the balance shall be recovered from other joint family property of the Defendants and from the Defendant Govindram personally.
This is the operative portion of the order passed on 21 -8 -1942.
(3.) IT was argued by Mr. Sanghi, learned Counsel for the Appellants, that this order amounts to a final decree as nothing remains to be done. In my opinion this contention is not tenable as a period of six months was laid down for the payment of the amount due. It was obviously contemplated that the Defendants would pay something within six months and then it will be seen whether the house mortgaged would be sold or not. Now it appears from an order of the Registrar dated 13 -8 -1946 that within six months the Defendants paid to the society a sum of Rs. 3,972 -4 -0. Then for the remaining sum due a decree for sale of the mortgaged property was passed on 13 -8 -1946. It is this decree that gave rise to the present dispute.
When on 11 -8 -1949 an application for execution of this decree was made the judgment -debtors raised the objection that it is not within time as time will run from 21 -3 -1942 when the first award was made by the registrar. The learned Additional District Judge over -ruled this objection holding that the decree passed on 13 -8 -1946 is the final decree and time would run from that date. On this basis he held that the execution was within time. The judgment -debtors have come in appeal against this order.;
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