(1) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others (S.B. Civil Writ Petition No.235/2004) DATE OF ORDER : April 16th , 2007 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. R.K. Thanvi & Mr. S.D. Purohit for the petitioner. Mr. Rajesh Joshi for respondents. BY THE COURT : By this petition, the petitioner has challenged order dated 21.08.2003 (Annex.-6) passed by Civil Judge (Jr.Dn.), Bikaner (hereinafter, 'the trial Court') in the application filed by the petitioner under Order 39, Rules 1 & 2, read with Section 151, (2) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others C.P.C. as well as judgment passed by the learned District Judge, Bikaner dated 13.12.2003 in Appeal No.154/2003 whereby the appellate Court affirmed the order passed by the trial Court and dismissed the appeal filed by the petitioner. According to facts, inter alia, stated in the writ petition, the petitioned filed a suit for permanent injunction before the trial Court and prayed that the respondents may be restrained from dispossessing him from the property in question and further from causing any damages to the petitioner. In the writ petition, at para 2, the petitioner has set out the controversy as under : “Whether respondent Bank can dispossess any person from its property without any decree of possession and eviction and without due order of courts on the basis of decree passed under Sec.118 of Rajasthan Cooperative Societies Act, 1965 for recovery of amount ?” Learned counsel for the petitioner stated that the petitioner is having a firm in the name and style of Joda Industries set up in village Udairamsar and, for the purpose of business, he took loan from the respondent Bank. It is admitted position that due to certain circumstances the petitioner could not repay the loan amount and the respondent Bank initiated recovery proceedings (3) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others under the provisions of Rajasthan Cooperative Societies Act, 1965 (for short, to be called 'the Act' hereinafter) which was subsequently amended vide Rajasthan Cooperative Societies Act, 2001. It is submitted that under Section 117 of the Act notice was given to the petitioner wherein an amount of Rs.3,56,430/- was shown as outstanding against the petitioner. After due process, a decree under Section 118 of the Act was passed against the petitioner on 25.05.2002. In pursuance of the said decree, warrant of attachment of the property of the petitioner was issued under Section 118, read with Rule92(3) of the Rajasthan Cooperative Societies Rules, 1966 (for short, to be called 'the Rules' hereinafter). It is contended by learned counsel for the petitioner that the aforesaid Act was specifically enacted for the purpose of implementing the recommendations of the Rural Credit Survey and the Schemes of Cooperative Development and with a view to providing simple and uniform legislation on the subject. It is submitted that there is no provision in the Act for passing a decree of possession or eviction and, for the said purpose, the State legislature enacted Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The said Act was amended from time to (4) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others time. It is contended by learned counsel for the petitioner that the respondent bank, on the basis of the decree passed under Section 118 of the Act, is trying to forcibly dispossess the petitioner and for the said purpose, the respondent No.1 issued letter to the Superintendent of Police, Bikaner on 06.08.2003 for taking possession of the property. In these circumstances, the petitioner filed a civil suit for permanent injunction alongwith application under Order 39, Rules 1 & 2, C.P.C. for temporary injunction in the Court of Civil Judge (Jr. Dn.), Bikaner. The learned trial Court dismissed the said application and while deciding the application for temporary injunction, objections with regard to balance of convenience, prima facie case and irreparable loss were taken into account. It is observed that there is no prima facie case made out because the petitioner took loan from the Bank and he could not repay the loan. While considering the second objection of balance of convenience, the learned trial Court has ignored the material question that the present suit is for permanent injunction and, in that suit, the petitioner has not challenged the recovery proceedings; but, he has prayed that without any decree, he cannot be dispossessed (5) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others from the property while taking help of the police. It is further contended that the learned trial Court only gave figures and details of the loan and found that there is no case of the petitioner. Therefore, the conclusion of the learned trial Court while deciding the application of the petitioner for temporary injunction was erroneous. Hence, aggrieved by this order, the petitioner preferred appeal before the appellate Court. The appellate Court also dismissed the appeal vide impugned order dated 13.12.2003. According to learned counsel for the petitioner, the learned trial Court as well as appellate Court committed grave error and ignored the basic question that whether the petitioner can be dispossessed without there being any decree of dispossession or eviction. It is also contended that it is settled law that prima facie case means the case involves a triable issue and, in the present case, the case is factually triable before the Court for resolution of the issue whether the respondents under the decree can dispossess the petitioner from the property in question. Therefore, the learned trial Court has failed to consider the matter without giving cogent reasons. Learned counsel for the petitioner contended that both the order passed (6) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others by the trial Court as well as judgment of the appellate Court, therefore, deserve to be quashed and set aside. In this case, on 21.01.2004, notice was issued to show cause and it was order that in the meantime the auction proceedings may go ahead, and the petitioner shall not be dispossessed only for the purpose of holding auction viz., inviting bids, but may be dispossessed thereafter in accordance with law. For vacating the stay order, the respondents have filed reply to the show cause notice and application under Article 226(3) of the Constitution of India. In the reply filed by the respondents, it is specifically stated that proceedings were initiated against the petitioner under the Act of 1965, therefore, against the decree passed under Section 118 of the Act there is alternative efficacious remedy under Section 124 of the Act. So also, it is further submitted that under the amended Rajasthan Cooperative Societies Act, 2001, the petitioner is having alternative remedy under Section 104 by way of appeal and revision under Section 107 by way of revision and as such the petitioner is not entitled to any interim relief in this writ petition. It is also contended that the suit filed by the petitioner (7) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others against the Bank is not maintainable because the petitioner has not sought any relief for declaration against the recovery. He is not disputing the outstanding against him due to the Bank inasmuch as the petitioner took three loans from the Bank to the tune of Rs.2,50,000/-, Rs.1,00,000/- and Rs.70,000/- in the year 1999 in the name and style of Joda Industries but he has not repaid the same, therefore, the answering respondents have rightly acted under Section 117 of the Act. It is contended by learned counsel for the respondents that the present proceedings is governed by Rule 92 of the Rules because against the petitioner under Section 118 of the Act, a decree was passed. Since the property of the petitioner was mortgaged and attached, as per Section Section 38 of the Act of 1965, therefore, the decree passed under Section 118 was executed by the answering respondent under Chapter XI, Rule 92 of the Rules of 1966. It is also submitted that neither the suit for permanent injunction nor the application filed under Order 39, Rule 1 & 2, C.P.C. was maintainable in view of the fact that under the Cooperative Societies Act there is alternative efficacious remedy available to the petitioner, therefore, the petitioner is not entitled to injunction in view of the provisions of (8) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others Section 41H of the Specific Relief Act. It is further stated that both the Courts below have rightly rejected the prayer of the petitioner and there is concurrent finding of fact. Therefore, according to learned counsel for the respondents, while exercising power under Article 227 of the Constitution, which is supervisory in nature, no relief can be granted to the petitioner with regard to quashing the impugned order passed by the trial Court as well as appellate Court and for grant of temporary injunction. I have perused the entire record of the case and provisions of the relevant law. In this case, first of all, it is required to be said that action has been taken by the respondent Bank under the Act of 1965 and amended Act of 2001 and, so also, under the provisions of the Rules of 1966. The Act of 1965 is special law enacted by the legislature, therefore, for the proceedings initiated under the Rajasthan Cooperative Societies Act, the decree passed under Section 118 of the Act is passed under special law and it is not disputed by the petitioner that he took loans from the Bank and there is outstanding against him. The petitioner's submission that even if the outstanding is there and decree has been (9) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others passed under Section 118 of the Act he cannot be dispossessed forcibly and for dispossession/eviction, there must be a decree passed by the civil Court cannot be accepted. It is very strange that admittedly both the Courts below have specifically held that no prima facie case is made out in favour of the petitioner, so also, he is admitted recovery and further he is not disputing the mortgage of the property with the Bank, then how he can object to dispossession from the property in question. In this regard, Rule 92 of the Rules of 1966 is required to be seen. According to Rule 92 of the Rules, a complete procedure is laid down for execution of the award passed under Section 118 of the Act. According to sub-rule (5)(b) of Rule 92 of the Rules of 1966, it is specifically provided as under : “(5)(b) After the distress is made, the Sale Officer may arrange for the custody of the property attached with the applicant or otherwise. If the Sale Officer requires the applicant to undertake the custody of the property, he shall be bound to do so and any loss incurred owing to his negligence shall be made good by the applicant. If the attached property is live-stock, the applicant shall be responsible for providing the necessary food therefor. The Sale Officer may, at the instance of the defaulter or of any person claiming an interest in such property, leave it in the village, city or town as the case may be or place where it was attached, in the charge of such defaulter or such person, if he enters into a bond in the form specified by the Registrar with one or more (10) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others sufficient securities for the production of the property when called for.” The above quoted provision clearly lays down that the Sale Officer can arrange for the custody of the property attached with the applicant and, for the said purpose, if he is taking police protection while sending letter to the District Superintendent of Police, it cannot be said that it is not in consonance with the provisions of law. There is no substance in the contention of learned counsel for the petitioner that without decree passed by the civil Court for dispossession/eviction the petitioner cannot be dispossessed from the property in question. Admittedly, decree dated 25.05.2002 (Annex.-2) has been issued under Section 118 of the Act of 1965. Section 118 (1)(a) of the Act reads as under : “(1) Every order made by the Registrar under sub- section (2) of section 74 or under section 117, every decision or award made under section 77, every order made by the liquidator under section 80 and every order made by the Tribunal under sections 123, 125, 126 or 127 and every order made under section 124, shall, if not carried out, - (a) on a certificate signed by the Registrar, or any person authorised by him in this behalf, be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court;” Therefore, obviously when specific provision of the statute (11) Rameshwar Lal Vs. Managing Director, Central Cooperative Bank Ltd., Bikaner & Others enacted by the legislature has characterized the decree passed under Section 118 of the Act as a decree of the civil Court, execution thereof in the manner provided for does not require to be called in question for its validity. I have also gone through Section 41 of the Specific Relief Act in which it is provided that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust. Therefore, obviously the learned trial Court as well as appellate Court rightly held that a specific alternative remedy is available to the petitioner under the Act of 1965 and proceedings were initiated for taking possession of the property in accordance with Section 92, then, no relief can be granted by the civil Court. In this view of the matter, I see no reason to interfere in the order passed by the Courts below. The finding given by both the Courts below does not suffer from any perversity or illegality. The writ petition is bereft of merit and is hereby dismissed. No order as to costs. (Gopal Krishan Vyas) J.