Srivastava, J. - (1.) THIS special appeal has been preferred against an order of a learned Single Judge, by which he dismissed this Appellant's petition under Article 226 of the Constitution. In that petition, the Appellant had prayed for a writ of mandamus prohibition requiring the Respondents not to take any coercive measures against the Appellant and his properties for realising that dues under an award given by one Sri H.H. Deo. Co -operative officer, Jaunpur,
(2.) THE facts leading up to the writ petition may be shortly stated. There is a Co -operative Society in village Dudhauna district Jaunpur which is known as Sahakars Growth Samiti Ltd. (hereinafter it will be referred to as the Samiti). The Society is registered under the U.P. Co -operative Societies Act, 1912. There is another larger Society in the district of Jaunpur which is known as Sahakari Gram Sewa Mandal, Bahim (hereinafter it will be referred to as the Mandal). The Samiti is a member of the Mandal and when it needs money it borrows it from the Mandal. The Samiti in its own turn advances money to its members. There in however, no direct relationship between the Mandal and the members of the Samiti. It is alleged, though it is not admitted, that the Appellant is a member of the Samiti He needed some money and approached the Samiti for a loan of Rs. 2,200 in the years 1949. The Samiti was not able to advance the money and referred the master for the Mandal. The Mandal it in alleged advanced Rs. 2,200 to the Appellant and obtained from him a promissory note for the amount The Appellant disputes this fact too He denies that he borrowed any money from the Mandal or that he validly executed any promissory note. It is also alleged that the Mandal did sot advance the money directly to the Appellant. The amount was advanced to him through the Samiti. When the loan was not repaid by the Appellant, the Mandal claimed the amount from him. He disputed his liability and the Mandal had the matter referred to arbitrations under the U.P. Cooperative Societies Rules. The arbitrator held that as the Appellant was not a member of the Mandal, the Mandal could not advance any money to him and that under the Co -operative Societies Rules, no dispute between the Mandal and a non -member could be decided by arbitration. Accordingly, the arbitrator rejected the claim of the Mandal against the Appellant. The Mandal then claimed the amount advanced by it from the Samiti and this dispute was also referred to arbitration under the Cooperative Societies Rules. The arbitrator pointed out certain irregularities which had been committed in connection with the advance of the loan but held that the Mandal could realise the amount from the Samiti and passed a decree in favour of the Mandal against the Samiti. In the award he also remarked that the Mandal could realise the amount from the assets of the Samiti which included the amount realisable by the Samiti from the Appellant. The Samiti submitted to this award and did not question it in appeal. The Appellant was, however no party to this arbitration proceeding and the award which was made against the Samiti has not an award made against the Appellant. After obtaining the award, the Man -(sic)moved the Collector of the district under Section 137(1) of the U.P. Co -operative Societies Rules and requested that the amount realised from the Appellant. The Collector has proceeded to issue coercive processes (sic) the Appellant and ordered the attach -(sic) of his properties for the realisation of (sic) uut. The Appellant then filed the (sic) ition which has given rise to this (sic) and prayed that the opposite parties (sic) ained from taking coercive measures against him and his properties for the realisation of the amount. The main ground on which the Appellant based his petition was that as he was not a party to the award which was sought to be enforced the amount could not be re -covered from him or from his properties' as the land revenue. The Mandal in reply contended that it had obtained an award against the Samiti and under Rule 128 of he U.P. Co -operative Societies Rules, it could realise this amount from the assets of the Samiti. According to the Explanation appended to that rule, the assets of the Samiti included the amount owed by the members of the Samiti to it. It was therefore, open to the Mandal to realise the amount from the Appellant. The learned Single Judge who heard the writ petition accepted the Mandal's contention in preference to that of the Appellant. He held that the Appellant having taken the Loan through the Samiti was the debtor of the Samiti to the extent of the loan and the amount of the loan could be considered to be an asset in the hands of the Samiti. It was therefore, open to the Mandal to realise the amount directly from the Appellant by means of coercive processes.
(3.) IT is urged on behalf of the Appellant in appeal that the Appellant denied that he was a member of the Samiti or that he had borrowed any money either from the Samiti or from the Mandal. As he was not a party to the arbitration proceedings, he was not bound by any thing said in the award. The findings that he was a member of the Samiti and that the money had been advanced to him through the Samiti were of no effect against him, as he had never been -allowed an opportunity of being heard and proving his case. The learned Judge was. therefore, not justified in his opinion that he owed any money to the Samiti or that on that account the amount in dispute was included in the assets of the Samiti. The alternative contention is that even if it be conceded for the sake of argument that the Appellant was a member of the Samiti and that he had borrowed the money from or through the Samiti, simply by getting the award against the Samiti without impleading him (the Appellant), it was not open to the Mandal to proceed against him directly for the realisation of the amount. On no ground, it was argued, could the amount be held to be realisable as land revenue from him and there was, therefore, no justification for the view of the learned Single Judge that coercive processes could be issued by the Collector against the Appellant for the realisation of the amount.;