Allowed

Omkar Co-Operative Credit Society Ltd. v. Lakkappa Sidaramappa Dabaja

Karnataka HC21 Oct 2024WP/106023/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order dismissing an execution petition. Relying on Section 101(1)(a) of the Karnataka Co-Operative Societies Act, the Court held that a Registrar's certificate deems an award executable as a Civil Court decree, setting aside the lower court's reliance on Section 101(1)(b).

What did the court decide?

The writ petition was allowed; the impugned order dated 28.11.2018 was set aside; execution proceedings were directed to proceed.

Omkar Co-Operative Credit Society Ltd. Vs Lakkappa… — Cooperative Societies | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 21^ST DAY OF OCTOBER, 2024

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE C.M. POONACHA

¶7

WRIT PETITION NO.106023 OF 2019 (GM-CPC)

¶8

BETWEEN:

¶9

OMKAR CO - OPERATIVE CREDIT SOCIETY LTD., HOSPET GALLI, GOKAK – 591 218, REPRESENTED BY RAMAPPA KARDIGUDDI, SECRETARY.

¶10

…PETITIONER

¶11

(BY SRI RAMESH N. MISALE, ADVOCATE)

¶12

AND:

¶13

LAKKAPPA SIDARAMAPPA DABAJA, AGE:50, OCC:BUSINESS, R/O: PAMALDINI, TQ: GOKAK – 591 306.

¶14

PARASHRAM LAXMAN SHNGALAPUR, AGE: 63 YURS, OCC: BUSINESS, R/O: BASAVA NAGAR, TQ: GOKAK – 591 218.

¶15

Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka

¶16

SANJU TANAJI ARABALLI, AGE: 48 YRS, OCC: BUSINESS, R/O: MARATHA GALLI, TQ:GOKAK – 591 218.

¶17

…RESPONDENTS

¶18

(BY MS. ARADHANA V. MANVI, ADVOCATE FOR SRI JAGADISH PATIL, ADVOCATE FOR R2; NOTICE TO R1 AND R3 ARE SERVED)

¶19

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION QUASHING THE IMPUGNED ORDER PASSED BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE, COURT GOKAK, IN E.P.NO.5/2018 DATED 28.11.2018, DISMISSING THE

¶20

¶21

NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶22

EXECUTION PROCEEDINGS, COPY OF THE SAID ORDER DATED 28.11.2018 IS PRODUCED AS ANNEXURE-A AND ETC.,

¶23

THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶24

CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

¶25

ORAL JUDGMENT

¶26

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

¶27

The present petition is filed by the decree holder challenging the order dated 28.11.2018 passed in E.P. No.5/2018 by the I Additional Senior Civil Judge, Gokak¹ , whereunder, the execution petition filed by the petitioner has been dismissed.

¶28

Learned counsel, Sri.Ramesh.N.Misale appearing

¶29

for the petitioner assailing the order of the Executing Court contends that the petitioner has obtained the certificate issued by the Registrar under Section 101 (1) (a) of the Karnataka Co-Operative Societies Act, 1959² and that the petitioner is entitled to execute the same before the Civil Court as the decree of the Civil Court. He further places

¶30

1 Hereinafter referred to as the ‘Executing Court’

¶31

2 Hereinafter referred to as the ‘Act’

¶32

3 - NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶33

reliance on the judgments rendered by the Co-ordinate

¶34

Bench of this Court in the cases of M. Sadananda S/o

¶35

Late M Subba Rao v/s Chief Executive Officer/ The

¶36

General Manager, Kadaba

¶37

Co-Operative Agricultural Bank Ltd, Kadaba, Puttur Taluk, Dakshina Kannada District³ , Basavaraju v/s Secretary, Sahakari Bhandara, Sira Town and another⁴ , NAGENDRA RAO L. AND ANOTHER v/s KOLLIMI KESIMBI AND OTHERS⁵ and Timmappa S/o Subraya Hegde v/s The Assistant Registrar of Co-

¶38

operative Societies and another⁶ and seeks for allowing of the present writ petition.

¶39

Per contra, learned counsel Ms.Aradhana.V.Manvi appearing for the learned counsel Sri.Jagadish Patil for respondent No.2 contends that the Executing Court has rightly appreciated the fact that in terms of Section 101

¶40

3 2010 (5) KAR.L.J. 574

¶41

4 1996 SCC ONLINE KAR 513

¶42

5 1974 SCC ONLINE KAR 259

¶43

6 ILR 2014 (1) KAR 551

¶44

4 - NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶45

(1) (b) of the Act, the petitioner is required to approach the Registrar to execute the award. Hence, she seeks for

¶46

dismissal of the writ petition.

¶47

Section 101 (1) (a) of the Act stipulates that is in respect of an order, decision or award as stipulated in subsection (1) Section 10, if a certificate has been issued by the Registrar, the same shall be deemed to be a decree of the Civil Court and shall be executed in the same manner as a decree. Section 101 (1) (b) also provides for execution in terms of what is stated therein.

¶48

In the present case, the petitioner has produced the certificate dated 20.01.2018 (Annexure-C), which has been issued in Form No.2 by the Assistant Registrar of Cooperative Societies, Bailhongal Sub-Division, Bailhongal, which stipulates that the award is executable as a decree of the Civil Court under Section 101 (1) (a) of the Act.

¶49

This Court in the case of Timmappa⁶ as held has follows:

¶50

“3. I find force in the submission made by the learned counsel for respondent No.2. In my opinion,

¶51

5 - NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶52

a certificate is issued under Sec.101(1)(a) of the Act to execute an award passed under Sec.71 of the Act and as stated in the said provision such a certificate is deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court. Rule 33-B of the Rules has no role to play in the issuance of a certificate. This becomes obvious by a plain reading of the aforesaid two provisions namely Sec.101(1)(a) of the Act and Rule 33-B of the Rules. It is stated that the award referred to above is challenged before the Karnataka Appellate Tribunal, Bangalore in Appeal No.506/2012. It is not the case of the petitioner that the award is stayed by the Appellate Tribunal. Hence, I find no legal infirmity in the issuance of the certificate dated 28.12.2011 (Annexure-H) or the pursuant execution proceeding in E.P. No.2/2012 to warrant interference by this Court.”

¶53

(emphasis supplied)

¶54

7. This Court, in the case of M. Sadananda S/o Late M Subba Rao³ as held has follows:

¶55

“6. A perusal of the same, would depict that certificate issued by the Registrar or any person authorised by him in the said behalf, is to be deemed a decree of Civil Court for purpose of executing the same before the Civil Court. In the instant case the award dated 9-2-2001 has been passed to reinstate the petitioner and hold a fresh enquiry and such being the position, the certificate has been issued by the Assistant Registrar of co-operative Societies calling upon the

¶56

6 - NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶57

respondent herein to pay certain amounts which admittedly is not awarded under the award dated 9-2-2001. Considering this fact Executing Court has found that there is no award passed for payment of amount and accordingly held that the certificate cannot be executed. A certificate issued by the Registrar or any person authorised by him under clause (a) of sub- section (1) of Section 101 enable the person in whose favour the award is passed to file an execution petition before the Civil Court for executing the award. Thus, it would emerge from combined reading of Section 101(1)(a) that in order to execute the award through the process of Civil Court, the issuance or grant of certificate would be necessary without which execution petition cannot be filed. The issuance of certificate signed by the Registrar or any person authorised by him would have to be construed as enabling provision. A person in whose favour award has been passed, would entitled to ignite the execution proceedings before the Civil Court on the strength of such certificate. The award may also be executed by the authorities designated by the Registrar or such other person empowered under the Act itself. Then in such an event the certificate contemplated under Section 101(1)(a) would not arise at all. In view of this it cannot be held that the certificate if it were to be contrary to award, would also become executable.”

¶58

(emphasis supplied)

¶59

The Executing Court has merely held that in view

¶60

of Section 101 (1) (b) of the Act before approaching the Civil Court the decree holder has to approach the Registrar

¶61

¶62

NC: 2024:KHC-D:15132 WP No. 106023 of 2019

¶63

under the Act. The Civil Court has not noticed Section 101 (1) (a) of the Act, which enables execution of an order/decision/award as a decree of the Court consequent to issuance of a certificate by the Registrar.

¶64

Having regard to the fact that the certificate dated 20.01.2018 has been issued, the Civil Court has erroneously rejected the Execution Petition.

¶65

In view of the aforementioned, the following:

¶66

ORDER

¶67

a) The writ petition is allowed .

¶68

b) The order dated 28.11.2018 passed in E.P No.5/2018 by the I Additional Senior Civil Judge,

¶69

Gokak is set aside.

¶70

c) The petitioner shall appear before the Executing Court on 20.11.2024, consequent to which, the executing Court shall proceed further in E.P No.5/2018 in accordance with law.

¶71

Sd/(C.M. POONACHA) JUDGE

¶72

PMP

¶73

CT-ASC/List No.: 1 Sl No.: 43

Omkar Co-Operative Credit Society Ltd. v. Lakkappa Sidaramappa Dabaja

Case brief

What is this about?

What did the court decide?

Omkar Co-Operative Credit Society Ltd. v. Lakkappa Sidaramappa Dabaja

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prakash S/O Ramchandra Deshpande Vs the Deputy Registrar

Baiju S/O Chandru Gavali Vs Shri Tukaram Co-Operative Bank Ltd.

Sri Shatasthala Brahma Channabasaveshwara Shivacharya Swamigalu Gangibhavi Vs Sri Gangibhavi Sukshetra Matha

The Executive Engineer Karnataka Neeravari Nigam Ltd., Vs the Government of Karnataka

Karnataka Vs the Special

The Executive Engineer Vs Sri Laxmappa Beerappa Surannavar