Nirmala Devi v. Printing and Publishing Co-operative Limited No. Sind (Q) 10, Kottarakkara, and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 19883 of 2009(O) -------------------------EP NO.77/2006 IN OS.47/2002 of SUB COURT,KOTTARAKKARA .................... PETITIONER(S): --------------- NIRMALA DEVI,D/O.MEENAKSHI AMMA, ESWARA VILASOM,KIZHAKKEKARA, KOTTARAKKARA KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): --------------- 1. PRINTING AND PUBLISHING CO-OPERATIVE LIMITED NO.SIND (Q) 10,KOTTARAKKARA, REPRESENTED BY SECRETARY SREEKUMAR, KOCHUPARACKAL VEEDU, THAZHAM MURI, PAVITHRESWARAM VILLAGE KOTTARAKKARA TALUK, KOLLAM. - (*) 2. E.RAJENDRAN,ESWARA VILASOM, KOZHAKKEKARA,KOTTARAKKARA TALUK, KOLLAM DISTRICT. 3. SREEDHARAN NAIR, MODUVILA VEEDU, PARAMKODU,ELAMADU VILLAGE, KOTTARAKKARA TALUK,KOLLAM DISTRICT. 4. RASHEEDKUTTY, KINAVU, NEELESWARAM P.O., KOTTARAKKARA TALUK,KOLLAM. 5. GOPALAKRISHNAN PILLAI,THATTAZHIKATHU VEEDU, NEDUVATHOOR, KOTTARAKKARA TALUK, KOLLAM DISTRICT. - (*)(RESPONDENT NO.2 DIED. NO LEGAL HEIR IS REQUIRED TO BE IMPLEADED - VIDE ORDER DATED 11.08.2009 IN WP(C)) ADV. SRI.P.HARIDAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19883/2009 ## APPENDIX PETITIONER' S EXHIBITS: EXT.P1 TRUE COPY OF DECREE DATED 16.09.2006 IN OS NO.47/2002 OF THE SUBORDINATE JUDGE, KOTTARAKKARA EXT.P2 TRUE COPY OF JUDGMENT DATED 16.09.2006 IN OS 47/2002 OF THE SUBORDINATE JUDGE, KOTTARAKKARA EXT.P3 TRUE COPY OF EXECUTION PETITION EP.NO.77/2006 BEFORE THE EXECUTION COURT ON 12.12.2006 FILED BY THE PETITIONER EXT.P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT BEFORE THE EXECUTION COURT EXT.P5 TRUE COPY OF THE ORDER DATED 11.11.2008 OF THE SUBORDINATE JUDGE, KOTTARAKKARA //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.19883 of 2009 -------------------------------------Dated this the 9[th] day of June, 2010.** ## **JUDGMENT** Petitioner who obtained an exparte decree against respondent No.1, a cooperative society for realisation of money was not able to convince executing court that civil court had jurisdiction to entertain the suit and pass a decree. Consequently executing court vide Ext.P5, order dated 11.11.2008 held that the decree is not executable in that the court which passed the decree had no jurisdiction to do so and hence the decree is a nullity. That order is challenged by petitioner/decree holder. 2. Facts in short are: Petitioner claimed that respondent Nos.2 to 5 on behalf of respondent No.1, a co-operative society received a sum of Rs.2,00,000/- from her on 05.11.1997 and Rs.1,50,000 on 05.10.1998 for construction of building and executed agreements in her favour. The said amounts were not paid to her and hence she filed the suit for recovery of the amount. Respondents remained exparte in the proceeding. Learned Sub Judge passed a decree in favour of petitioner on 16.09.2006. For execution of that decree petitioner filed E.P.No.77 of 2006. Respondents resisted execution contending that the decree is not executable since the dispute referred to in the plaint between respondent No.1, a co-operative society and petitioner, its creditor is one referable to the Registrar under Section 69(H) of the Co-operative **WP(C) No.19883/2009** 2 Societies Act (for short, “the Act). Section 100 of the Act ousted jurisdiction of the civil court to entertain a suit concerning such a dispute and hence the decree is a nullity having been passed without authority. Executing court accepted the contention and referring to Sections 69(H) and 70(A) of the Act held that decree passed a nullity. The execution petition was dismissed. 3. It is contended by learned counsel for petitioner that Section 69(H) of the Act has no application since the suit was filed on 21.03.2002 and the said provision was brought into the Act by an amendment with effect from 01.02.2003 and hence in the absence of anything to show that the said provision was retrospective and applied to pending proceedings, the suit instituted prior to the amendment on 21.03.2002 is not affected by Section 69(H) of the Act. It is also contended by learned counsel that at any rate, it is not shown that the dispute between petitioner and respondent No.1 is a “dispute” as defined in Section 2(i) of the Act. There is no justification in the executing court conducting a roving enquiry to find out whether the civil court had jurisdiction to entertain the suit and pass a decree. Learned counsel for respondents contended that the dispute is one coming within the mischief of Section 2(i) of the Act and hence required to be decided by the Registrar under Sections 69(H) and 70 of the Act. **WP(C) No.19883/2009** 3 4. Section 69(H) of the Act relied on by executing court states that a dispute arising between the society and a creditor is also a matter to be referred to the Registrar. For applying Section 69(H) there must be a “dispute” as defined in Section 2(i) of the Act. According to the learned counsel for respondents, even as per the provision as it stood before incorporation of Section 69(H) of the Act, the dispute in the present case is one which was referable to the Registrar. Section 2(i) of the Act defines word 'dispute' as any matter “touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not”. To come within the ambit of Section 69 or 100 of the Act it must be a “dispute” as defined under Section 2(i) in that the dispute must be one touching the business, constitution, establishment or management of the society. If the dispute is one which does not touch the business, constitution, establishment or management of the society it is not a “dispute” as defined under Section 2(i) coming within the purview of Section 69 or 100 of the Act ousting jurisdiction of the civil court. Learned counsel for petitioner has shown to me a copy of bye-law of respondent No.1 to contend that borrowel of amount for construction of building for respondent No.1 is not the business of respondent No.1. If that contention is accepted certainly the “dispute” between petitioner and respondent No.1 is not one as defined in Section 2(i) so that bar of jurisdiction under Section 100 of the Act applied. **WP(C) No.19883/2009** 4 5. I am afraid it was not within the relam of executing court to go in deep into such matters and conduct an enquiry to find out whether the court which passed the decree had jurisdiction to do so. It is settled position of law that executing court cannot go behind the decree. Ofcourse executing court can decide whether the decree is a nullity, whether the decree is passed without jurisdiction but that does not enable the executing court to conduct a detailed enquiry into jurisdiction of the court which passed the decree as held by this Court in **Vettimoodu Milk Producers' Co-operative Society Ltd. and others v. Catholic Syrian Bank Ltd. (1994 (2) KLJ 764). It was held,** “............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. ............” That was a case between a creditor and co-operative society and the objection regarding maintainability of the suit was not raised by the society before the trial court. A decree was passed against the society. On the execution side the objection as to executability of decree for want of jurisdiction was raised. It was held that whether in the nature of transaction between parties thereto, there arose a dispute as defined in the Act is a question that would depend upon the **WP(C) No.19883/2009** 5 investigation into the facts to determine the nature of transaction between the society and creditor 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 question of absence of jurisdiction in the court which passed the decree was apparent or that the civil court lacked inherent jurisdiction to entertain the suit filed by the respondent. It was also held that society not having raised the plea of want of jurisdiction in the court during trial of the suit the society would be barred by res judicata from raising the contention during execution of decree. The decision referred above applied to the facts of the case on hand with all vehemence. In this case respondents remained exparte on the trial side which meant that they had no objection to the court entertaining the suit and passing a decree against them. In that situation, respondents cannot by taking recourse to Section 69(H) of the Act which requires a deep investigation with reference to the bye-law of the society to decide whether the dispute involved is one as defined in Section 2(i) of the Act to contend on the execution side that the decree is not executable and it is a nullity in so far court which passed the decree did not have inherent jurisdiction. I am afraid executing court was not correct in law or on facts in entering a finding that decree is not executable. **WP(C) No.19883/2009** 6 6. Learned counsel for respondents pointed out that instruction given to the learned counsel is that an application to set aside the exparte decree is pending in the court which passed the decree. That however is a different matter which is not required to be gone into this proceeding. Let that application have its course and ultimate result. Resultantly, the Writ Petition is allowed and Ext.P5, order is set aside. Finding of executing court that it had no jurisdiction to execute the decree is set aside. Executing court is directed to proceed with execution of decree as provided in law. **THOMAS P.JOSEPH, Judge.** **cks**