RSA No.2035 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2035 of 1989 Date of decision: 25.11.2011. Som Lal ... Petitioner versus Manager, The Sirsa Co-op. Marketing-cum-Processing Society Ltd. Sirsa and another ... Respondent(s) CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA Present: Shri V.P.S. Mithewal, Advocate, for the petitioner. Shri Ashok Verma, Advocate for the respondent No.1. G.S. SANDHAWALIA, J. (Oral): The present appeal has been filed by the unsuccessful plaintiff- appellant aggrieved with the dismissal of the suit by the Trial Court on 08.04.1987 and the appeal by the Lower Appellate Court, on 30.09.1987. The case of the plaintiff was that he had been appointed an execution agent for the recovery of loan against one Ghisa Ram, vide resolution dated 07.08.1974, by the defendant No.1 and he was allowed commission at the rate of 12% on the amount, so recovered from Ghisa Ram in pursuance of the said authority. He had instituted an execution petition in the Court of Sub-Judge, Ist Class, Sirsa for recovery of loan amount and for the attachment of the land owned by the judgment debtor. Due to his efforts, Ghisa Ram sold the land in favour of defendant No.1- The Sirsa Co-operative Marketing-cum- Processing society Ltd., Sirsa. Therefore, he was entitled to commission at the rate of 12% on the amount, so recovered, which came to Rs.21,354/-. The plaintiff also sent a registered legal notice upon the defendant on 26.03.1982, but no reply was received and therefore, he was constrained to file the present suit. RSA No.2035 of 1989 -2- The case of the defendant was that though a resolution dated 07.08.1974 was passed authorizing the plaintiff to make recovery of the loan amount from Ghisa Ram, but, this resolution was never confirmed and that the execution petition was withdrawn by the plaintiff unconditionally, without any authorization and reason. The recovery, so effected from Ghisa Ram, was not on account of any action taken by plaintiff-Som Lal. Since the judgment debtor Ghisa Ram had lost in the litigation, he had filed an application dated 06.03.1981 before the society agreeing to sell the land in favour of the society, which request was accepted and Ghisa Ram had thereafter, executed sale deed in favour of the society. Therefore, once plaintiff had taken no part in recovering the amount, therefore, there was no question of payment of any commission to him. The Trial Court vide judgment and decree dated 08.04.1987 dismissed the suit of the plaintiff on the ground that the resolution in favour of the plaintiff was never approved and the alleged confirmation on 01.09.1974 was never placed on record and the Assistant Registrar, Co- operative Marketing-cum-Processing Society Ltd., Sirsa had never approved the appointment of the plaintiff as execution agent. On the issue No.2, it was held that on the date of filing of the execution application dated 26.08.1974 there was no authority in favour of the plaintiff as the resolution itself was dated 07.08.1974, which according to the plaintiff was confirmed on 01.09.1974. Therefore, he could file the execution petition only after 01.09.1974, but he filed the same on 26.08.1974. The said execution petition was got dismissed as withdrawn on 22.05.1976 without any reason. Accordingly, it was held that no recovery had been effected by the plaintiff. On issue No.3, it was held that the award passed against Ghisa Ram became final and plaintiff never contested or was involved in the recovery. Ghisa Ram had himself moved an application Ex.D-8, to sell his land in favour of society after the dismissal of his writ petition and RSA No.2035 of 1989 -3- accordingly, since the plaintiff was not associated with the recovery, therefore, correspondingly he was not entitled to any commission. The appeal filed by the plaintiff has also been dismissed though the Lower Appellate Court has modified the finding that it was not necessary for any resolution to be passed in favour of the plaintiff by defendant No.2. Since, it was a usual practice to appoint Execution Agents for effecting the recovery and dues of the society. As per the order Ex.P-3, the Assistant Registrar, had appointed the appellant, as execution agent on 02.07.1971, whereas the case of the plaintiff was that he had been appointed on 07.08.1974. The findings regarding the lack of involvement of the plaintiff in the recovery proceedings was confirmed in view of the fact that Ghisa Ram executed sale deed in respect of the land in lieu of impugned dues and there was no evidence to prove that the appellant had any role to play in this behalf. The fact that the execution was dismissed as withdrawn on 22.05.1976, was also noticed. Therefore, it was held that there was no substance in the appeal. Aggrieved, the plaintiff has appeared before this Court. From the facts it would be clear that though the plaintiff had been appointed as a commission agent, but there is a dispute regarding the date of appointment. His entitlement for any commission could only be made out, if he had been associated with the recovery. Both the Courts below found that the execution filed by the appellant was dismissed as withdrawn on 22.05.1976 and therefore, no recovery was effected at his instance. A perusal of the record shows that CWP No.4961 of 1975 was filed by Ghisa Ram challenging the award against him, which was dismissed on 27.10.1975 and thereafter on 06.03.1981 Ghisa Ram had filed an application stating that he wanted to satisfy the said amount standing against him and accordingly vide a resolution Ex.D-7 dated 27.03.1981, the RSA No.2035 of 1989 -4- society had resolved to purchase the land of Ghisa Ram in order to secure its due. Thus from the above sequence of evidence, it should be clear that plaintiff was never involved in recovering the amount from Ghisa Ram and therefore he is not entitled for any commission on the amount so recovered, as claimed in the suit. In view of this fact, there is no substantial question of law involved in the present appeal, which may warrant interference by this Court. Accordingly, the appeal is dismissed. [ G.S. Sandhawalia ] November 25, 2011. Judge Jyoti 1