^^^- ^&)^1" IN THE MGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION NO.f3SS-OF 20CI? PETITIONER ^ L P. Dubey, S/o Late Shiv Shankar Prasad Dubey, R/o Tiwari Chal, Jarhabhata, District- Bilaspur (C.G.) Ls-y RESPONDENTS -I^. s>w i VERSUS - 1 ] President, Nav Jeevan Housing Society Pachpedi Naka, Raipur (C.G.) ,-^9. VG.^^1 r vr' 2] Registrar Cooperative Society, Raipur. 3] Govemment ofChtiattisgarh, Through Collector Bilaspur. WMT PETITION UNDER ARTICLE 226/227 OFJBKCONSTITUTION OFDMDIA AF^ V mOH COURT OF CHHATTISGAKH AT BILASPUR WRIT PETITION No. 1355 of2006 PETITIONER : L.P.Dubey. VERSUS KESPONDENTS : President, Nav Jeevan Housing Society Pachpedi Naka, Raipur & Others. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: H^n'ble^hri Satish fc Agnihotri, J. Present: Shri Ashok Dubey, Advocate for the petitioner. Shri Dashrath Lal, Advocate for the respondent No. 1. Shri N.N.Roy, Panel Lawyer for the State/respondent No. 2 & 3. ORDER(ORAL) (Passed on 21st day of July, 2010) 1. Challenge in this petition is to the order dated 27.12.2005 (Annexure P/5) passed by the Additional Registrar in Second Appeal No. 77(2)(0ne) 131/2005, whereby order passed by the Deputy Regista-ar that the execution application filed by the petitioner was beyond the period oflimitation offive years, was affimied. 2. The indisputable facts, in briefare that on 31.03.1994 (Annexure P/l), the Deputy Regisfa-ar, Cooperative Societies (Package), Raipur, directed the respondent No. 1 to allot Plot No. 48, admeasuring 60X40 ft. to the petitioner wherefore the registration was done earlier and further, ifthe said plot is not available, any other plot of the same size would be allotted and registration of the same may be done. The respondent No. 1 failed to comply with the order dated 31.03.1994 (Annexure P/l) and further did not challenge the said order before the superior authority. The petitioner, thereafter, filed an execution application before the Deputy Registrar under the provisions ofsection 85 ofthe Cooperative Societies Act, 1960 (for short 'the Act, 1960') on 16.03.2001. The Deputy Registrar, by order dated 28.08.2001 (Annexure P/3) dismissed ^,^^^ /€"^\ o-^ li^ the Case No. 31/90-91 on the ground that the same was barred by limitation, relying on the provisions of section 85(c)(ii) of the Act, 1960. Thereagainst, the petitioner preferred an appeal before the Joint Registrar, in Appeal Case No. 78-50(R)2001 wherein the Joint Registrar, by order dated 28.01.2005 (Annexure P/4) upholding the findings recorded by the Deputy Regisfa'ar, also dismissed the appeal. Being aggrieved, the petitioner preferred a second appeal before the Registrar, Cooperative Societies being S.A. No. 77(2)(0ne)131/2005. The same was also dismissed affinning the orders passed by the aufhorities below. Thus, this petition. 3. Shri Dubey, leamed counsel appearing for the petitioner submits that the Deputy Registrar has applied wrong provisions of law as there is no prescription oftime limit in case offilingofan execution proceeding under the provisions ofclause (c) ofsection 85 ofthe Act, 1960. Shri Dubey further relies on a decision of the High Court of Madhya Pradesh, in Maganbhai vs. Saugor Co-Op. BantJ, wherein it was held that ifthere is no provision oflimitation in the statute, the provisions of the Limitation Act 1963 {for short 'the Act, 1963'), would be applicable. In that case, the limitation period is 12 years. Under provisions of section 85(a) ofthe Act, 1960, the orderpassed by the Registrar shall be executed in the same manner as a decree ofsuch court. 4. Leamed counsel appearing for the respondent No. 1 does not controvert the legalposition as stated by Shri Dubey, counsel for the petitioner. 5. Provisions of section 85 of the Act, 1960 makes it clear that in application for recovery, only in clause (b), the period of limitation is prescribed as five years, which reads as under: ' 1969MPLJ246 ^^ij&i. s ^ ' %,' . ^. ^ /.' ^^ • ^" ^ -.-^y "•^•"K"^.:^'' -^ 7. "85. Execution of orders, etc. :Every order or award passed on decision give by the Registrar under any provision of this Act, every order passed by the Appellate or Revisional Authorities and every order made, decision given by the Liquidator, ifnot carried out- (a) on a certificate signed by the Registrar or any person authorized by him in this behalf be deemed to be a decree ofa Civil Court and shall be executed in the same manner as a decree of such court; or (b) be executed according to the law and under the mles for the time being in force for the recovery arrears ofland revenue: or (c) be executed by the Registrar or any other person empowered by the Registrar in this behalf, by the attachment and transfer in the manner as may be prescribed or sale or sale without attachment of any property of the person or a society against whom the order, decision or award has been obtained or passed: Provided that any application for recovery under clause (b) shall be made - (i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorized in this behalf; and (ii) within five years from the date fixed in the order, decision or award and if no such date is fixed, from the date or order, decision or award, as the case may be." There is specific mention that ifthere is an order for recovery ofarrears, the limitation would be five years. Under the proviso to section 85, the authorities below have committed an error of law in applying the proviso to clause (c) ofsection 85 ofthe Act. In the case on hand, where the direction was not for recovery of any money either by way of land revenue or otherwise, but for allotment of a plot which the Deputy Registrar found in its order dated 31.03.1994 (Annexure P/4), that the petitioner is entitled to the same. It is well settled that where there is no statutory prescription in the statute itself, the provisions of the Act, 1963 are applicable for the purpose ofcounting limitation, and in the present case, Article 136 of ^.^^/ -^ ^ the Act, 1963 which provides for 12 years limitation for getting a decree of civil court executed which is applicable in the case on hand also as in clause (a) of section 85 which clearly states that any order passed by tlie Registo-ar is deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court. The authorities below have misinterpreted and wrongly applied the provisions of law and have rejected the application ofthe petitioner for execution ofthe order dated 31.03.1994 (Annexure P/l) on the ground oflimitation. In view of the foregoing and for the reasons stated hereinabove, the impugned orders dated 28.08.2001 (Annexure P/3), 28.01.2005 (Annexure P/4) and 27.12.2005 (Annexure P/5) are quashed. The delay in filing the execution application, if any, is condoned and the matter is remitted back to the Deputy Registrar to consider the application dated 16.03.2001 in accordance with law and pass appropriate order, on merit. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit