- (1.) This appeal arises out of execution proceedings of a decree passed by an arbitrator under the Co-operative Credit Societies Act. The appeal was presented to the Judicial Committee of the State and is now before us under Art. 374 (4) of the Constitution.
(2.) Raja Nandlal was a member of the decree-holder society and was also its debtor. A dispute arose between him and the society and under the rules governing such societies the matter was referred to arbitration. The arbitrator on 19 Meher 1352F. passed a decree against him in the sum of Rs. 8100 payable in equal six monthly installments with six per cent interest, the first instalment being payable at the end of Asur 1353F. On 2nd Dai 1353F, under the provisions of S. 42, cl. (d), Co-operative Societies Act, the decree was sent for execution to the civil Court on a certificate issued under the signature of one Moulvi Mohammed Hasan, Madadgar Nazim. The amount recoverable was stated as Rs. 8100 principal and Rs. 666 9 0 interest. On the same day the decree-holder presented an application for execution of the decree to the civil Court, Balda, claiming recovery of Rs. 10,339-14-9. It was alleged that as default had been committed in the payment of the first instalment due in the month of Azur 1353F., the whole decretal amount had become recoverable. It was prayed that the property detailed in the application be attached. On 3rd Dai 1353F. i. e., a day after the presentation of the application for execution, the judgment debtor deposited a sum of Rs. 1000 towards the first instalment in the Office of the Registrar of Co-operative Societies and expressed his willingness to deposit any further amount that may be due towards that instalment. The Nazim's office stated in reply that as he had committed default in the payment of the first instalment the whole decree had become due and the amount of Rs. 1000 could not be accepted. Subsequently, however, on 5th Dai 1353F. a letter was issued by one Mohammed S. N. Naik, Assistant Madadgar Nazim, to the civil Court, Balda, saying that Rs. 1034 had been deposited in the Office of the Nizamat Co-operative Credit Societies and therefore the proceedings in execution should be stayed or adjourned. On receipt of the latter in the civil Court, the decree-holder raised on objection that the Registrar had no jurisdiction to stay execution of the decree as he was not an executing Court. This objection was overruled by the Court and it was held that under the provisions of S. 42, Co-operative Credit Societies Act the Registrar retained the power of staying execution of the award decree even after the issue of a certificate by him. In the result the execution proceedings were stayed. Against this order an appeal was taken to the Sadar Adalat. The Sadar Adalat allowed the appeal partially and held that to the extent of the payment made the decree could not be executed but it could be executed with respect to future instalments as and when they would fall due. It further found that the default clause in the decree must be taken to have been condoned by the deposit of the first instalment in the office of the Registrar. The decree-holder preferred a second appeal to the High Court but without any material success. The High Court held that there had been a default in the payment of the first instalment and the decree-holder had thus a right to execute the whole decree and that neither the Registrar nor the executing Court could deprive the decree holder of that right. In spite of this finding it took the view that the Registrar still retained jurisdiction to adjourn execution proceedings. The contention of the judgment-debtor that the certificate was bad as having been issued by a Madadgar Nazim was negatived. It was held that the Madadgar Nazim bad delegated powers in this respect and that the defect, if any, stood cured by a fresh certificate signed by the Nazim himself The result was that with these findings the decision of the executing Court adjourning the execution proceedings was maintained.
(3.) The first point for consideration in this appeal is as regards the jurisdiction of the Registrar functioning under the Co operative Credit Societies Act in respect to execution of decrees. The decision of this question depends on the interpretation to be placed on the language employed in S. 42, Cl. (d), Co-operative Credit Societies Act, 1340 F. as amended. This section is in these terms: "If an award given by the Registrar or by a person nominated by him, or by a committees of arbitrators is not acted upon, then the Registrar can have it enforced- (a) through a civil Court on a certificate issued by him. The civil Court will treats the award in the same way as its own decree; (b) through a Revenue Court or officer by issuing a certificate to that Court or officer." The language employed in this section does not place the Registrar on the same pedestal as a Court passing the decree under the Civil Procedure Code. Under the Code a civil Court passing a decree is also the Court executing the decree. It has a dual capacity. (1) of the Court passing the decree and (2) of the executing Court. The Registrar, it appears, has the first capacity of a civil Court but he has not been placed in the matter of execution in the same capacity as a civil Court passing a decree. The only jurisdiction conferred on the Registrar is that he can issue a certificate and on that certificate he can send a decree either to the civil Court or to a revenue officer. It may be that after issuing a certificate he may be entitled to cancel the certificate or issue another, or he may by withdrawing the certificate withdraw execution from a civil Court and send it to a revenue Court and vice versa. On the plain words of the section, it cannot be held that the Registrar has been constituted an executing Court or that any powers in the matter of the execution of the award decree have been conferred upon him. The question that arises for consideration is whether in view of this construction of the section it was open to the Registrar to intervene during execution proceedings that were pending in a civil Court on the basis of the certificate granted by him. In order to determine this point it is necessary to see precisely what the Registrar actually did in this case, After a default had been made in the payment of the first instalment and the whole decree debt had become due and execution had been taken out for recovery of the amount, the Registrar accepted the amount of the first instalment and asked the executing Court to stop further proceedings. The act of the Registrar in accepting the first instalment was a clear trespass on the duties of the executing Court. It is only in the executing Court where payment towards satisfaction of the decree the execution of which had been taken out could be made, unless the Court passing the decree has also the jurisdiction to execute it. As already indicated, this jurisdiction is not passed by the Registrar. That being so, in our opinion, the requisition of the Registrar to the executing Court to stop execution proceedings and his act in accepting the first instalment were in excess of the jurisdiction conferred on him and the executing Court was entitled to ignore it. Moreover, the Registrar could not alter or amend the decree passed by the Arbitrator at this stage.;