# Province of Bonibay v. K. S. Advani and Others, Das J

- **Citation:** [1950] 1 S.C.R. 741
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Case number:** Civil Appeal No. 374/4 of 1356
- **Bench:** Mehr Chand Mahajan, R. s. NAIK JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/province-of-bonibay-v-k-s-advani-and-others-das-j-146
- **Pages:** 7

## Headnote

Co-operative Cr<dit Societies Act, 1340 ]!'., (Hyderabwi), s. 42
--Award-Remission by Registrar to Civil Court for executionPoicers of Registrar-Instal1nent decree-Defa'U,lt-Exer:tltion pro·
ceedinas for whole amount in Civil Oourt-P(,wer of Registrat· to
a.ccept instalment and direct Civil Oottrt to stop proceedings.
Section 42 of the Co-operative Credit Societies Act, 1340 F.,
{Hyderabad) provided as follows: "If an award g:ven by the
Registrar or by a person nominatecl by him, or by a comruittee
of arbitrators is not acted upon, then tbe Registrar can J~ave it
enforced-(a) through a civil court on a certificate issu~d by him.
The civil court will treat the award in the satne way as itB own
decree; l_b) through a Revenue Court or officer by issuing a certi-
':ficate to that court or officer."
Held, that under the section the Registrar was not in the
same position as a court passing t.he decree unUer the Civil Procedure Code in the matter of execution of the decree and be does
not possess all the powers of an executing court.
Where a dispute arose bet,veen a m<:mber of a society and
the society and an arbitrator appointed under the Act passed a
decree for payruent of a certain sum in six monthly instaln1ents
with a condition that if default was made in the payment of any
inRtaln1ent the who!e amount will become due, and under the
provisions of s. 42 the decree was sent for execution to the Civil
Court au a. certificate of Registrar :
95
1950
Province of
Bonibay
v.
K. S. Advani
and Others,
Das J,
1950
Oc~. 12.
742
SUPREME COURT REPORTS
[1950]
1950
Held, that after a default bad been made in the payment of
the first instalment and the whole decree de.bt had become duo
Oo-ope1 alive
and execution had been taken out for recovery of tht:l \vhole
Soc1et11 of Debts amount, the Rei;(istrar had no pJwer to accept the amount of first
v.
instalment and direct the executing co1.1rt to stop further proNandlo,f,
ceed.inga, and the executing court wa.s entitled to ignoro the
Registrar's order and ta proceed with the execution.
APPEAL under article 37 4( 4) of the Cons ti tu tion from
a judgment and decree of the High Court of Hyderabad dated 24th Aban 1356 F., in Civil Appeal No.
374/4 of 1356 F.
Devi Pershad, for the appellant.
Appa Rao and Sada Shiva Rao, for the respondent.
1950. October 12.
The judgment of the Court was
delivered by
»ahajan J.
MAHAJAN ].-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 article 374 (4) of the Constitution.
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 the 19th Meher 1352 F.,
passed a decree against him in the sum of Rs. 8,100
payable' in equal six monthly instalments with six
per cent. interest, the first instalment being payable at
the end of Azur 1353 F. On the 2nd Dai 1353 F.,
under the provisions of section 42, clause ( d), of the
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. 8, 100 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
..
-·
. '
$.C.R.
SUPREME COURT REPORTS
743
the first instalment due in the month of Azur 1353 F.,
1950
the wh<J!e decretal amount had become recoverable.
It was prayed that the property detailed in the appli- 8 °~·t7~v:.
cation be attached.
On 3rd Dai 1353 F., i.e., a day
oc" Y;
'L
after the presentation of the application for execution,
Nandlal.
the judgment deb

## Text

-··
S.C.R.
SUPREME COURT REPORTS
741
I, therefore, agree with my Lord the Chief Justice
that this appeal should be allowed and the judgments
and orders of the Courts below should be set aside and
the petition should stand dismissed. I also agree to the
order for costs made by my Lord the Chief Justice.
Appeal allowed.
Agent for the appellant: Ranjit Singh Narula.
Agent for the respondents Nos. 1 (a) and 1 (b) :
Rajinder Narain.
lIN THE SUPREME COURT OF INDIA (HYDERABAD).]
CO-OPERATIVE SOCIETY OF DEBTS
v.
NANDLAL
[MEHR CHAND MAHAJAN and R. s. NAIK JJ.J
Co-operative Cr<dit Societies Act, 1340 ]!'., (Hyderabwi), s. 42
--Award-Remission by Registrar to Civil Court for executionPoicers of Registrar-Instal1nent decree-Defa'U,lt-Exer:tltion pro·
ceedinas for whole amount in Civil Oourt-P(,wer of Registrat· to
a.ccept instalment and direct Civil Oottrt to stop proceedings.
Section 42 of the Co-operative Credit Societies Act, 1340 F.,
{Hyderabad) provided as follows: "If an award g:ven by the
Registrar or by a person nominatecl by him, or by a comruittee
of arbitrators is not acted upon, then tbe Registrar can J~ave it
enforced-(a) through a civil court on a certificate issu~d by him.
The civil court will treat the award in the satne way as itB own
decree; l_b) through a Revenue Court or officer by issuing a certi-
':ficate to that court or officer."
Held, that under the section the Registrar was not in the
same position as a court passing t.he decree unUer the Civil Procedure Code in the matter of execution of the decree and be does
not possess all the powers of an executing court.
Where a dispute arose bet,veen a m<:mber of a society and
the society and an arbitrator appointed under the Act passed a
decree for payruent of a certain sum in six monthly instaln1ents
with a condition that if default was made in the payment of any
inRtaln1ent the who!e amount will become due, and under the
provisions of s. 42 the decree was sent for execution to the Civil
Court au a. certificate of Registrar :
95
1950
Province of
Bonibay
v.
K. S. Advani
and Others,
Das J,
1950
Oc~. 12.
742
SUPREME COURT REPORTS
[1950]
1950
Held, that after a default bad been made in the payment of
the first instalment and the whole decree de.bt had become duo
Oo-ope1 alive
and execution had been taken out for recovery of tht:l \vhole
Soc1et11 of Debts amount, the Rei;(istrar had no pJwer to accept the amount of first
v.
instalment and direct the executing co1.1rt to stop further proNandlo,f,
ceed.inga, and the executing court wa.s entitled to ignoro the
Registrar's order and ta proceed with the execution.
APPEAL under article 37 4( 4) of the Cons ti tu tion from
a judgment and decree of the High Court of Hyderabad dated 24th Aban 1356 F., in Civil Appeal No.
374/4 of 1356 F.
Devi Pershad, for the appellant.
Appa Rao and Sada Shiva Rao, for the respondent.
1950. October 12.
The judgment of the Court was
delivered by
»ahajan J.
MAHAJAN ].-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 article 374 (4) of the Constitution.
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 the 19th Meher 1352 F.,
passed a decree against him in the sum of Rs. 8,100
payable' in equal six monthly instalments with six
per cent. interest, the first instalment being payable at
the end of Azur 1353 F. On the 2nd Dai 1353 F.,
under the provisions of section 42, clause ( d), of the
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. 8, 100 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
..
-·
. '
$.C.R.
SUPREME COURT REPORTS
743
the first instalment due in the month of Azur 1353 F.,
1950
the wh<J!e decretal amount had become recoverable.
It was prayed that the property detailed in the appli- 8 °~·t7~v:.
cation be attached.
On 3rd Dai 1353 F., i.e., a day
oc" Y;
'L
after the presentation of the application for execution,
Nandlal.
the judgment debtor deposited a sum of Rs .. 1,000
towards the first instalment in the Office of the RegisMahajan J.
trar 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. 1.000 could not be
accepted. Subsequently, however, on the 5th Dai
1353 F., a letter was issued by one Mohammed Aihsan,
Assistant Madadgar Nazim, to the Civil Court, Balda,
saying that Rs. 1,034 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 Jetter in the civil court,
the decree-holder raised an 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 section 42 of the 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
SUPREME COURT REPORTS
[1950]
1950 ·
and
the
decree-holder
had
thus
a
right to
.
execute the whole decree and that neither the Registrar
00·operatw•b nor the executing court could deprive the decree-holder
Sooioly of De ts f h
· h
J
·
f th"
fi d ·
· t
k th
v.
o t at ng t.
n spite o
1s
n mg 1t oo
e
Nandt•t.
view that the Registrar still retained jurisdiction to
adjourn execution proceedings.
The contention of the
Mahajan J.
judgment-debtor that the certificate was bad as having
been issued by a l\Iadadgar Nazim was negatived. It
was held that the Madadgar N azim had delegated
powers in this respect and that the defect, if any, stood
cured by a fresh certificate signed by the N azim
himself. The result was that with these findings the
decision of the executing court adjourning the execution proceedings was maintained.
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 section 42, clause (d), of the Cooperative Credit Societies Act, 1340 F., as amended.
This section is in these terms :-
"If an award given bi- the Registrar or by a person
nominated by him, or by a committee ofarbitrators
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 treat 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 deceee is also
the court executing the decree. It has a dual capa.
city, (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
'
•1
-
s.c.R.
SUPREME COURT REPORTS
745
.jurisdiction conferred on the Registrar is that he can
t95o
issue a certificate and on that certificate he can sencl
1 a decree either to the civil court or to a revenue officer.
Co-operative
.
.
.fi
h
Society of Debts
It may be that after 1ssumg a certi cate
e may be
v.
entitled to cancel the certificate or issue another, or he
Nandlat.
may by withdrawing the certificate withdraw execution from a civil court and send it to a revenue court
:llahaian J.
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 a ward decree have been conferred1
·upon him. The question that arises for consideration
is whether in view of this construction of the section it
was open to the H.egistrar 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 possessed 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.
All .the courts below have interpreted the section
to mean that the Registrar as thl! couripassing tlie
•
746
SUPREME COURT REPORTS
[1950]
I%o
decree has the same power as the court executing it.
0
t.
We are unable to agree in this view in view of the
o-opera ive
]
.
.
Sooieiy of Debts clear anguage employed m the section.
The analogy
v.
of decisions given in respect of civil courts is not availN•n·ilal.
able in interpreting this Act.
Under the Civil
Procedure Code the parent court, i.e., the court passil!akaja.'i J.
·
I
d
·
·
· d" ·
mg tie ecree, always retams 1uns 1ct10n to execute
the decree even if it has been transferred to one or
more courts for the purpose of execution. Primarily
it is the function of the court passing the decree to
execute it but when it is found that it is not possible
for it to effectively execute it provision has been made
in the Code authorising it to send it to other courts for
the purpose of execution; but none of these provisions
in any way affect the jurisdiction of the court passing
the decree to execute it whenever it thinks fit to do so
and the order transferring execution to other courts
does not take away its jurisdiction in the matter. The
position however in the case of the Registrar is entirely
different.
He himself has been given no jurisdiction
to execute his own decree.
The only power conferred
on him is to get it realized through a civil court or a
revenue court and the only authority conferred on him
is to issue a certificate for that purpose.
The High Court in this case has, in our opinion,
given a decision contradictory to its own findings.
It
has been held that the first appellate court was in
error in the view that the default clause in the decree
stood condoned by the payment of the first instalment
. by the judgment-debtor in the office of the Registrar
and it has been positively found that once a default
has been made the Registrar had no jurisdiction to
condone it and that the decree-holder was entitled to
execute the decree for the full decretal amount with
interest.
Having reached this conclusion the High
Court still maintained the decision of the two courts
below adjourning the execution proceedings.
The
logical result of the High Court's decision is that the
certificate stands and the execution application has
been properly made and the decree-holder is entitled
to the relief claimed but in spite of it it has been held
,.
•
. ,
•f
S.C.R.
SUPREME COURT REPORTS
747
that the Registrar can stay the proceedings. It seems
1950
to us that the act of the Registrar in asking the civil
.
t
t
t .
d'
d'
b f
.
Co-opB'atwe
cour to s ay execu 10n procee ings pen mg
e ore it Soci•tY of n, bts
is a clear encroachment on the powers of the executing
v.
court and is in excess of his statutory powers and
Nandlal •
should have been ignored by the courts.
As a fresh certificate was issued by the Nazim in
Mahajan J.
order to cure a defect that might be said to exist in the
original certificate because of its having been sent by
the Madadgar N azim, it is unnecessary to consider the
contention of the learned counsel that there was
no proper certificate in this case and the proceedings in execution therefore were
without · jurisdiction.
The result therefore is that this appeal is allowed,
the decisions of all the three courts below are set aside
and the executing court is directed to proceed with
the execution of the decree from the stage at which it
was interfered with by the letter received from the
office of the Registrar. In the circumstances of this
case we will make no order as to costs of the proceedings throughout.
Appeal allowed.
[IN THE SUPREME CouRT·OF INDIA (HYDERABAD).]
KAPOJ\E CHAND
v.
KADAR UNNISA BEGUM AND OTHERS
[MEHR CHAND MAHAJAN, R. S. NAIK and
KHALIL UZZAMAN J J.J
Muhammadan Law-Dower-Widow in possession of husband's
estate in lieu of dower-Whether entitltd to priority over crediiorsNature of widow's lien for dower.
A Muhammadan widow in possession of her husband's estate
in lieu of her claim for dower with the consent of the other bairn
or otherwise is not entitled to priority as against his other un~
J9b0
Oct l'l.
, ,. ,
secured creditors. There is nothing inherent in the very nature
\)\ (\.\)~~~ Vl'n\c\1 en\it\es it to priority.