IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 CRP.NO. 520 OF 2010() ----------------------------------- AGAINST THE ORDER IN EP 827/2007 IN OS.611/2005 OF MUNSIFF COURT, KODUNGALLUR .................... REVN. PETITIONER(S): JUDGEMENT DEBTORS ------------------------------------------------------------------- 1. SAJAN, AGED 42, S/O.PANIKKASSERY RAMAKRISHNAN, METHALA VILLAGE, KANDAMKULAM DESOM, KODUNGALLUR TALUK. 2. LEENA, AGED 47, W/O.MOOKKUPARAMBIL SURENDRABABU, EDATHRINJI VILLAGE, DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.P.M.ABDUL JALEEL (KODUNGALLUR) SRI.V.A.AJMAL RESPONDENT(S): DECREE HOLDER ---------------------------------------------------- JIJO KALLIKKATTIL, S/O.KALLIKKATTIL PRABHAKARAN, MALA DESOM, VADAMA VILLAGE, MUKUNDAPURAM TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.520 of 2010 ==================================== Dated this the 19th day of October, 2010 O R D E R This revision arises from the order passed by learned Munsiff, Kodungallur on June 9, 2010 in E.P. No.827 of 2007 in O.S. No.611 of 2005 holding that the decree is executable against petitioners-judgment debtor Nos.3 and 4 as well notwithstanding that they are the Secretary and Treasurer of the Society registered under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955 (for short, “the Act”) and the provisions of Sec.11 of that Act. Learned counsel for petitioners contended that in view of Sec.11 of the Act and petitioners were impleaded in the suit in their capacity as Secretary and Treasurer of the Society executing court went wrong in allowing execution against petitioners personally. Reliance is placed on the decision in Velayudha Kurup v. Dy.Tahsildar (RR) (1994 [2] KLT 219) and Varghese K. v. Bhanu Vikraman Unnithan (ILR 2007 [2] Kerala 731). 2. To appreciate the contention it is necessary to look C.R.P. No.520 of 2010 -: 2 :- into the decree sought to be executed by the respondent-decree holder. The decree states that defendant Nos.1 to 4 (who include petitioners – defendant Nos.3 and 4) are jointly and severally liable to pay a sum of Rs.88,100/- with interest at the rate of 6% per annum from the date of suit till date of realisation on the principal sum of Rs.80,100/-. The decree specifically states that petitioners and defendant No.2 have also personal liability in paying the amount. Section 11 of the Act pressed into service to absolve liability of petitioners (defendant Nos.3 and 4) reads as under: “11. Enforcement of decree against society.- If a decree is against the person or officer named on behalf of the society, such decree shall not be executed against the property, movable or immovable, or against the body of such person or officer, but against the property of the society.” (emphasis supplied) According to the learned counsel though the decree states that petitioners (and defendant No.2) are personally liable to pay the C.R.P. No.520 of 2010 -: 3 :- amount to the respondent, that liability is in their capacity as office bearers of the Society and hence the decree could be executed only against the property of the Society and not against the petitioners personally. Learned counsel invited my attention to the decisions cited, supra. 3. Velayudha Kurup v. Dy.Tahsildar (supra) it was a case where office bearers of the Society had executed personal bonds and came into the position of sureties by virtue of Section 145 of the Code of Civil Procedure (for short, “the Code”) binding them personally, jointly and severally and it was held that Sec.11 of the Act has no application to the facts of that case. Varghese K. v. Bhanu Vikraman Unnithan (supra) also it was a case of personal liability incurred by the office bearers of the Society under Sec.145 of the Code and hence found liable notwithstanding Sec.11 of the Act. The point that learned counsel wanted to impress upon is by placing reliance on the said decisions is that it is only when such personal liability has been undertaken by the office bearers of the Society that they could be proceeded against personally notwithstanding Sec.11 of the Act. According to the learned counsel no such personal liability has been undertaken by the petitioners and hence the executing court C.R.P. No.520 of 2010 -: 4 :- was bound to absolve petitioners from personal liability in view of Sec.11 of the Act. 4. As is clear from Sec.11 of the Act it is only when a decree is “against the person or officer named on behalf of the Society” that such decree cannot be against such person or officer personally. In other words, for the application of Sec.11, the decree should be against the Society though it is worded against the person or officer “on behalf of the Society”. Section 11 of the Act does not prohibit the court from passing a decree against the office bearers of the Society personally if they are otherwise found liable personally for any reason whatsoever. In the present case decree states that petitioners (and defendant No.2) have personal liability to pay the amount. To understand that part of the decree, it is useful to refer to the judgment of the court. I obtained a copy of the judgment in the suit. Learned counsel has a contention that executing court could not go beyond the decree and peruse the judgment. No doubt, executing court cannot go beyond the decree. But if a clarification is required for the executing court it is well within the power of executing court to refer to the judgment to understand what exactly is meant by the terms of the decree. It is for that limited purpose that I would refer to the C.R.P. No.520 of 2010 -: 5 :- judgment. 5. Respondent sued the Society (defendant No.1) and its office bearers including petitioners alleging that on the representation made by petitioners and defendant Nos.2 and 5 to 8 he advanced money to the Society but he later learned that the said amount was not utilised for the affairs of the Society. Though in the plaint he stated that the Society is a registered one, at the time of evidence he stated that the information he received was that it is not a registered one. He happened to state otherwise only from the information he got from petitioners and defendant Nos.2 and 5 to 8. Petitioners and defendant Nos.2 and 5 to 8 received the money from him but it was not utilised for the affairs of the Society and thus committed breach and petitioners and defendant Nos.1, 2 and 5 to 8 are liable for the said amount. That of course was disputed by petitioners and defendant Nos.1, 2 and 5 to 8. They contended that defendant No.1 is a registered Society and that the amount received from respondent was utilised for the affairs of the Society (defendant No.1) and hence they have no liability. In the meantime respondent endorsed on the plaint that he does not want personal relief against defendant Nos.5, 6 and 8. Learned Munsiff considered the rival contentions C.R.P. No.520 of 2010 -: 6 :- and rejected version of respondent that defendant No.1 is not a registered Society. But learned Munsiff observed that though it is the contention of petitioners and defendant Nos.1, 2 and 5 to 8 that the money received from the respondent was utilised for the affairs of the Society (defendant No.1), absolutely no proof is forthcoming for the said purpose. In paragraph 10 of the judgment learned Munsiff observed that Exts.A1 to A3 (marked on the trial side) show that petitioners and defendant No.2 received the money from the respondent and that petitioners or defendant Nos.2 and 5 to 8 have not produced documents to show that amount received by petitioners and defendant No.2 as per Exts.A1 to A3 were duly accounted in the accounts of the Society (defendant No.1) and it was utilised for the benefit of the Society. Learned Munsiff entered a finding that in the absence of such evidence defendant No.2 and petitioners who are the President, Secretary and Treasurer (respectively) of the Society are personally liable for the amount they received from the respondent as per Exts.A1 to A3. It is on that finding that petitioners (and defendant No.2) were found personally liable to pay the amount to the respondent. That conclusion proceeds from the finding that petitioners (and defendant No.2) did not C.R.P. No.520 of 2010 -: 7 :- produce any documents to show that amount they collected from the respondent was duly accounted in the accounts of the Society. In other words it was found that amount was received by the petitioners (and defendant No.2) but not accounted in the accounts of the Society. The decree accordingly made petitioners (and defendant No.2) personally liable. It is not as if decree is passed in the name of petitioners (and defendant No.2) on behalf of the Society. Petitioners (and defendant No.2) are personally found liable. Section 11 of the Act is not meant to absolve office bearers of the Society from such liability. Whether on the facts and evidence the court was justified in arriving such a conclusion and making petitioners (and defendant No.2) personally liable is not a matter for decision of the executing court. So far as the decree cast personal liability on petitioners and that decree stands, that has to be executed. The decision relied on by the learned counsel does not help the petitioners but would show that when there is personal liability against office bearers of the Society, notwithstanding Sec.11, it could be executed against them. That is the view taken by the executing court. I do not find any illegality or infirmity in that finding requiring interference under Article 227 of the Constitution. C.R.P. No.520 of 2010 -: 8 :- 6. Learned counsel pointed out that an appeal against judgment and decree of learned Munsiff is pending consideration. I make it clear that the decision rendered in this revision will not affect right of petitioners to pursue their remedy in the appeal if any pending against the judgment and decree. Revision fails. It is accordingly dismissed. THOMAS P. JOSEPH, JUDGE. vsv