1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1107 OF 2010 The Wai Urban Co-operative Bank Ltd, Wai ....Petitioner vs. Rajendra Sonaba Bhise & Ors. ...Respondents Mr.R.K.Dravid for the petitioner None for the respondents CORAM :A.S.OKA,J. DATE : APRIL 13, 2010 P.C.: 1 Heard the learned counsel for the petitioner. On 16 th February 2010, in this writ petition under Article 227 of the Constitution of India this Court issued a notice for final disposal of writ petition at admission stage. Office noting shows that the respondents have been duly served. 2 The petitioner filed a dispute being dispute no.350 of 2003 under section 91 of the Maharashtra Co-operative Societies Act,1960 (herein after referred to as the said Act ) against the respondents. An Award was made by the learned Judge of the Co-operative Court on 31 st January 2004. A certificate was issued dated 8 th March 2004 by the learned Judge of the Co-operative Court in accordance with section 98 (a) of the said Act of 1960. The said certificate was issued on the basis of the Award in dispute no.350 of 2003 filed by the petitioner. On the basis of the said certificate, an application for execution was filed by the petitioner before the learned Civil Judge (Senior Division) at Satara. By the impugned order dated 21 st August 2009, the learned trial Judge 2 held that Civil Court has no jurisdiction to entertain the execution proceeding and therefore, the execution application was ordered to be returned to the petitioner for presentation to the appropriate Court. The learned trial Judge held that reference to such Court in clause (a) of section 98 of the said Act is a reference to the Court by which the Award was passed and hence, the Civil Court cannot become the Court of execution. 3 After having heard the learned counsel for the petitioner, I find that the approach of the learned Civil Judge is completely erroneous. Section 91 of the said Act contemplates a dispute to be filed in the Co-operative Court. Section 96 of the said Act provides that if money claim is made by the Society against the members, an Award shall be passed specifying the amount due and payable. Section 98 of the said Act reads thus : 98.Money how recovered  Every order passed by the [Official Assignee of a de-registered society under sub-section (3) of section 21A or every order passed] by the Registrar or a person authorised by him under Section 88 or by the Registrar [or the Co- operative Court] under section 95 [or by the Co- operative Court under section 96], every order passed in appeal under the last preceding section, every order passed by a Liquidator under section 105, every order passed by the State Government in appeal against orders passed under section 105 and every order passed in revision under section 154 shall, if not carried out; (a) on a certificate signed by [the Official Assignee or] the Registrar [or the Co-operative Court] or a Liquidaor, be deemed to be a decree 3 of a 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 rules for the time being in force for the recovery of arrears of land revenue; Provided that, any application for the recovery in such manner of any such sum shall be made by the Collector, and shall be accompanied by a certificate signed by the Registrar. Such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order. 4 On plain reading of section 98, the same is applicable to recovery of money payable as per the Award passed by the Co-operative Court under section 96 of the said Act. Clause (a) of section 98 provides that on certificate signed by the Co-operative Court the Award under section 96 of the said Act shall be deemed to be a decree of Civil Court and shall be executed in the same manner as the decree of the such Court. Thus, a legal fiction is created by the clause (a) by which an Award under section 96 of the said Act is made a decree of Civil Court. Once a certificate in terms of clause (a) of section 98 is issued by the Co-operative Court on the basis of the Award made under section 96 of the said Act, the Award is to be executed as if it is a decree of the Civil Court. Thus, the reference in clause (a) of section 98 is to the Civil Court and not to the Co-operative Court. The reason being by a legal fiction, such Award becomes a decree of a Civil Court which is capable of being executed by a Civil Court. The reference in section 98(a) to such Court is to a Civil Court and not to Co- operative Court. If intention was to confer jurisdiction 4 on a co-operative Court to execute the Award, there was no occasion to provide for a certificate under section 98 (a) of the said Act. Thus, on the basis of the certificate under section 98 (a), the Award can be executed in accordance with provisions of the Code of Civil Procedure,1908 and in particular part II thereof read with Order XXI thereof. 5 The learned trial Judge has relied upon the decision of this Court in case of Sadguru Construction Co.Pvt.Ltd. Vs. Greater Bombay Co-operative Bank Ltd.[2007 (5) Bombay C.R. 810]. This Court was dealing the execution of a recovery certificate issued in terms of section 101 of the said Act. In the context of the execution of such certificate, this Court held that Civil Court cannot execute such certificate. This Court relied upon section 163 of the said Act which bars the jurisdiction of Civil Court. However, the section provides that the jurisdiction of Civil Court is barred save as expressly provided under the said Act. Section 98 (a) of the said Act specifically provides that on certificate signed by a Co-operative Court, an Award under section 96 shall be deemed to be a decree of Civil Court which can be executed in the same manner as a decree of Civil Court. 6 Interpretation put by the learned trial Judge is completely erroneous. The execution application was maintainable before the Civil Court. 7 Hence, I pass the following order : i) Impugned order dated 21 st August 2009 is quashed and set aside. ii)The learned trial Judge will proceed to decide the Special Darkhast No.46 of 2005 in accordance with 5 law. iii)Petition is allowed in above terms. JUDGE