MUHAMMAD AMIN SAHIB DIED Vs. TIRUVANNAMALAI CO OPERATIVE SOCIETY

JUDGEMENT

(1.) In this second appeal Mr. Arunachalam raised a very interesting point of law on which the only reported case is that of Karuppasami v. Krishnaswami, A. I. R. (36) 1949 Mad. 609 : (1949-1 M. L. J. 199), a decision of Satyanarayana Rao J.

(2.) There was a mortgage decree passed by the District Munsif of Tiruvannamalai in favour of the Co-operative Society. The Society, instead of proceeding with the execution of the decree in the District Munsifs Court, applied to the Registrar to recover the money payable under that decree under Section 57A, Madras Co-operative Societies Act, VI [6] of 1932. Under that section, the Registrar or any person subordinate to him empowered by the Registrar in this behalf may, subject to such rules as may be prescribed by the local Government, recover the amount due under a decree or order of a civil Court by the attachment and sale or by the sale without attachment of property of the person against whom such decree or order has been obtained or passed. Under Section 57B, the Registrar or any person empowered by him in that behalf is deemed to be civil Court for the purposes of Article 182 of Schedule 1, Limitation Act, IX [9] of 1908. Rule 22 of the rules framed under the Act sets forth the procedure to be followed by the Registrar when an application is made under Section 57A. Form no. 1 of Schedule III, is the form prescribed for such application. On receipt of the application, the Registrar shall verify the correctness and genuineness of the particulars set forth in the application with the records, if any, in his office and prepare a demand notice in writing in duplicate in the form prescribed by the Registrar, setting forth the name of the defaulter, the amount due and forward it to a sale officer.

(3.) The contention of Mr. Arunachalam is that the Registrar cannot take proceedings under Section 57A of the Act without a formal transfer of the decree from the Court which passed the decree to the Registrar. Under Section 38, Civil P. C., a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. So he argues that if the decree has not been sent for execution to the Registrar, the Registrar is not competent to execute it. The short answer to this argument is that the execution to which Section 38 refers is an execution under the Code of Civil Procedure. The proceedings taken by the Registrar under Section 57A of the Act, may be of the same nature and may have the same result as (sic) but they are not execution proceedings in a civil Court governed by the Code of Civil Procedure. Section 39 says that "the Court which passed the decree may on the application of the decree-holder send it for execution to another Court" for any of the reasons mentioned in Clauses (a) to (d). Clearly, Clauses (a), (b) and (c) do not apply. Clause (d) is in the following terms: "If the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court." We think that such Court must be a Court governed by the Code of Civil Procedure and not a body which might have functions almost exactly similar to those of the civil Court but is not governed by the Code of Civil Procedure. It may be that the Registrar acting under Section 57A can be deemed to be a civil Court for some purposes. Section 57B expressly says that the Registrar will be a civil Court for purposes of Art. 182, Limitation Act. For purposes of court-fee, a learned Judge of this Court has held that the Registrar may be deemed to be a civil Court. Subramaniam v. Official Liquidator, A. I. R. (36) 1949 Mad. 595: (1949-1 M. l. J. 107). But there is no authority for the position that the Registrar can be treated as a Court within the meaning of Section 39, Civil P. C.