IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 CRP.No. 656 of 2009() -------------------------- AGAINST THE ORDER DATED 06/10/2009 IN EA.192/07,EP.33/03 IN CRP.7772/1993 of SUB COURT,NEYYATTINKARA .................... REVN. PETITIONER(S): PETITIONER ------------------------------------------ T.C.BALAKRISHNAN NAIR, S/O. CHELLAPPAN PILLAI, LEKSHMI VILASAM BUNGLOW, NARUVAMMOODU, PALLICHAL VILLAGE, PALLICHAL DESOM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENT ------------------------------------- SECRETARY, NARUVAMMOODU CO-OPERATIVE BANK T-160, NARUVAMMOOD P.O. ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.656 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011. ORDER The short question that arises for consideration is whether the order now sought to be put in execution by the respondent society is an executable decree. 2. The facts are as follows: It seems that the Joint Registrar of Co- operative Societies has passed an order seeking to realise a sum of Rs.3,40,681.29 with 18% interest from the petitioner by order dated 18.12.1999. Other details are unnecessary for the purpose of disposal of this revision petition. Suffice it to say, the said order was put in execution. The judgment debtor, who is the petitioner herein, entered appearance in the execution proceedings and filed E.A.192 of 2007 challenging the maintainability of the execution petition. According to him, there is no decree available for execution. He relied on Section 76 C.R.P.656/2009. 2 of the Kerala Co-operative Societies Act (hereinafter referred to as the Act). The court below relying on the decision reported in Krishnamoorthy v. Khaleel Rahman (1996(2) K.L.T. 788) held against the petitioner and found that the execution petition is maintainable and decided to continue the execution proceedings. 3. Learned counsel appearing for the revision petitioner pointed out that the lower appellate court was in error in overlooking the mandatory provision, namely Section 76 of the Act, which mandates that unless a certificate is obtained, the orders made mention of therein cannot be put in execution through a civil court. It is pointed out that unless there is a certificate as enjoined by the said provision, the award or the order that may be passed by any of the authorities under the Act does not acquire the character of a decree and the present uncertified order, of which execution is now sought, is unsustainable. C.R.P.656/2009. 3 4. Learned counsel appearing for the respondent on the other hand contended that this is nothing but a collateral attack, which is not permissible under law. If the petitioner was aggrieved by the order by which liability was mulcted on him, he ought to have challenged it in accordance with the provisions of the Act, where adequate remedies are provided to him for redressal of his grievances. Without taking recourse to those provisions, the petitioner cannot be heard to say that the order is not executable and collaterally attack the order by which he was asked to pay the amount. In support of his contention, learned counsel relied on a passage from Administrative Law by Wade, 9th Edn.. Reliance was placed on the decision reported in Co-operative Society of Debts v. Nandlal (AIR (37) 1950 SC 274). 5. In order to resolve the controversy, one has to necessarily refer to Section 76 of the Act. Before doing so, it may be noticed that there is no dispute regarding the fact that the order involved in the proceedings was passed under C.R.P.656/2009. 4 Section 68(2) of the Act. Section 76 of the Act figures in Chapter XI, which has the heading 'Execution of Awards, Decrees, Orders and Decisions.' Section 75 provides for a particular mode of recovery, with which we are not concerned in this proceedings. Section 76, the relevant provision, reads as follows: “76. Execution or orders, etc.:- Every order made under sub-section (2) of section 68 or under section 75 every decision or award made under Section 70, every order made by the liquidator under section 73 and every order made by the Tribunal under Section 82, section 84, section 85 or section 86 and every order made under section 83 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; or (b) where the order is for the recovery of money, be executed according to the law and under the rules for the time being in force for the recovery of arrears of public revenue due on land: C.R.P.656/2009. 5 Provided that any application for such recovery shall be made- (i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorised by him in this behalf; (ii) within twelve years from the date fixed in the order, decision or award and if no such date is fixed, within twelve years from the date of the order, decision or award, as the case may be, or © be executed by the Registrar or any other person subordinate to him empowered by the Registrar in this behalf, by the attachment and 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.” 6. One cannot omit to note the distinction drawn by the legislature between Section 76(a) and 76(b) of the Act on one hand and 76(c) of the Act on the other. A careful reading of Sections 75 and 76 will indicate the different modes of enforcing the award or order as the case may be. Section 76 (a) mandates that any order passed under the C.R.P.656/2009. 6 various provisions stated therein which is sought to be executed in a civil court as if it is a decree can be resorted to only after getting a certificate from the Registrar. Then alone the order or award as the case may be acquires the character of a decree that can be executable in a civil court. Prima facie, it would appear that the certificate is absolutely necessary. But learned counsel for the respondent pointed out that it is only a procedural matter and it does not affect the rights of the parties as such and therefore is of no consequence. As regards the collateral attack, he relied on the following passage from Administrative Law by Wade, 9th Edn. pages 281 to 285 : “.............. As a general rule, the court will allow the issue of invalidity to be raised in any proceedings where it is relevant. Where some act or order is invalid or void, the consequences are followed out logically: consequential acts are also invalid. an illustration is the House of Lords' decision in the case, mentioned later, where a man prosecuted for carnal knowledge of a detained mental defective was able to plead that C.R.P.656/2009. 7 the detention order under which the defective was held had not been validly made: the detention order was therefore a nullity and an essential element of the offence was lacking. Many comparable examples are to be found throughout the field of judicial review. ........... .............The correct attitude would probably be to treat the defective licence, at least if regular on its face, as a licence de facto, on the same principle as with officers de facto, mentioned below. In some situations the courts have sensibly adopted this type of solution, refraining from pushing the doctrine of nullity to extremes. ............The legislation had its own system for appeals against enforcement notices and it had progressively restricted the issues which a defendant was permitted to raise otherwise than on appeal. This regime, designed to make enforcement notices speedily and conclusively effective, would be disrupted if collateral pleas were allowed. ............ C.R.P.656/2009. 8 .............. There may also be cases where, although there is no special statutory remedy, it would be contrary to the scheme of the act to allow the validity of an order to be disputed collaterally in enforcement proceedings.” 7. The attempt of the learned counsel for the respondent was to draw a distinction between lack of inherent jurisdiction and violation of procedural formalities. It is contended that the former makes the order ab initio void and no rights can flow from it. In the latter case, unless substantial injury or loss is caused to the opposite side, it will not be fatal and the order cannot be ignored. 8. Though to some extent the above proposition may be correct. It is not always the case that even in case of procedural irregularities, it can be overlooked. There are instances when failure to follow procedural rules have been held to vitiate an act. However, in the case on hand C.R.P.656/2009. 9 certificate is not a mere procedural formality. It is the certificate which infuses life into an order or award transforming it into a deemed decree. 9. Reliance was placed on Co-operative Society of Debts's case (supra) wherein a similar issue was considered. But in the said case, there was a certificate as enjoined under the provisions of the Hyderabad Co-operative Credit Societies Act, but that was defective. The issue as to whether a certificate was necessary was not directly considered in the said decision. However, during the pendency, a proper certificate was produced and the issue as to whether the proceedings in execution was bad due to want of certificate was not considered. 10. One must notice that going by Section 76 of the Act, the order passed by the various authorities under the Act gets a fictional status of a decree on the basis of the certificate issued by the Registrar. It is necessary to refer to Rule 72 of the Co-operative Societies Rules, which reads as follows: C.R.P.656/2009. 10 “72. Issue of certificate under section 76:- (1) The holder of any decision, award or order referred to in Section 76 of the Act shall, if the said decision, award or order is not carried out, apply to the Registrar for the execution thereof under clause © of section 76 or for a certificate to be issued under clause (a) or (b) of the said section: Provided that no application for execution under clause © of section 76 shall be entertained, if a certificate has already been issued under clause (a) or (b) of the said section. Certificate referred to in clause (a) or (b) of section 76 shall be in Form No.12, and be issued under the name and signature of the Registrar and shall bear the date and seal of his office. (2) The Registrar may, on receipt of an application under clause (1) above for the issue of a certificate, issue the certificate, only on his satisfying that no such certificate has been issued to the party to enable him to apply for execution either to the Collector or a civil court of competent jurisdiction, previously. C.R.P.656/2009. 11 (3) In case, a certificate issued under sub- rule (2) is lost or destroyed before the party could apply for execution either to the Civil Court or Collector, the Registrar may, on his payment of a penalty of Rs.5 paid into the Treasury issue a duplicate of the certificate already given with the word “Duplicate” marked thereon.” It provides for the procedure for obtaining a certificate. It is significant to notice that there is a statutory form provided for the issuance of a certificate. It is difficult to accept the contention raised by the learned counsel for the respondent that section 76 is only a procedural formality and its violation does not go to the root of the issue. It is far from so. 11. The lower court seems to have placed reliance on the decision reported in Krishnnamoorthy v. Khaleel Rahman (1996(2) K.L.T.788). In fact that decision dealt with a case under the Chit Funds Act and ultimately it was held that Chit Funds Act is not applicable to Kerala at all. C.R.P.656/2009. 12 The issue that arose for consideration in the said decision was regarding the transfer of a decree. The decision was not concerned with the necessity for a certificate for executing the award passed by the authority as if it is a decree though there too there is a similar provision like in the present Act. 12. In Co-operative Society of Debts' case (supra) in fact held that unlike the civil court, the Registrar does not have the power to execute his order like a civil court, but can only issue a certificate as provided for in the Act. In the case on civil court the court which pases the decree always retain the jurisdiction to execute the decree or transfer it for execution. In the case of Registrar, once he issues the certificate and send it for execution to a civil court, thereafter he cannot meddle with the execution which thereafter is strictly within the province of civil court. Registrar cannot thereafter receive money towards the decree debt or such suspension of execution. C.R.P.656/2009. 13 13. One may refer to the decision reported in Chempazhanthi Service Co-op. Society Ltd. v. Co- operative Tribunal (1979 K.L.T. 629). In that decision, the question considered was as to when an order, award etc., passed under the Act acquires the characteristics of a decree, which can be executed in a civil court. It will be profitable to refer to paragraph 5 of the decision, which reads as follows: “Reference to S.76 of the Co-operative Societies Act makes it clear that an Arbitrator under the Act cannot be a civil court. It is by virtue of S.76 that awards made by a Registrar is rendered executable in the same manner as a decree of a civil court. In other words, the award of an Arbitrator assumes the character of a decree by the deeming provision contained in S.76, in whose absence it will lose that character. It is useful to remember that S.76 makes the award by an Arbitrator a decree for the limited purpose of execution and not for any other purpose.” C.R.P.656/2009. 14 14. In the decision reported in Vaniamkulam Service Co-operative Bank Limited v. Raman Nair (1975 K.L.T. 620) also the same issue was considered and a similar view was taken. 15. One may also notice that it is well settled by now that when a statute prescribes a particular mode of doing a thing, it has to be done in that manner alone and in no other way. One may refer to the decision reported in Haresh Dayaram Thakur v. State of Maharashtra ((2000) 6 SCC 179), wherein it was held as follows: “The position is well settled that if the statute prescribes a procedure for doing a thing, a thing has to be done according to that procedure. “ 16. The result is that there can be no manner of doubt that an order passed by the authorities under the Co- operative Societies Act is not executable as if it is a decree of the civil court unless Section 76 is complied with. In fact it is the certificate issued by the Registrar or the authority concerned that gives the colour of a decree to the order or C.R.P.656/2009. 15 award passed under the Act and makes it executable in a civil court. Though not a decree by itself, by fiction status of a decree is given to the order or award by virtue of the certificate issued by the Registrar. Therefore, it could not be said that it is only a formality or only a matter of procedure. 17. The contention of the respondent that absence of certificate does not cause any prejudice to the petitioner and also that by accepting the contention of the petitioner public funds are affected is without force. In the case on hand the provision in Section 76 may be both mandatory and directory. Mandatory in the sense that a certificate is absolutely necessary for execution as if it is a decree, directing in the sense that even if the certificate is defective in form and content, it may be curable. In statutes conferring a power to be exercised on certain conditions, the conditions prescribed are normally held to be mandatory, a power inconsistent with those conditions is not acceptable. C.R.P.656/2009. 16 18. It is also important to notice that the certificate has to be accompanied by a copy of the order or award as the case may be. Therefore the contention of the respondent that certificate is only a procedural formality, violation of which will not invalidate the execution proceedings and also that the present challenge by the petitioner is a collateral attach of he order casting liability cannot be countenanced. 19. On a plain reading of the provision of the Act and Rules it is abundantly clear that certification by the Registrar is a sine qua non for the order or award tog et the fictional status of a decree. This court is unable to accept the finding of the court below that the petition filed for execution of decree, order or award passed by the authorities under the Co-operative Societies Act is maintainable. Admittedly no certificate as contemplated under Section 76 of the Act is produced in the case on hand. Therefore, it is clear that the execution petition is not maintainable. C.R.P.656/2009. 17 In the result this revision petition is allowed, the impugned order is set aside and E.A. 192 of 2007 stands allowed and E.P. stands dismissed. However, this will not preclude the respondent from pursuing any remedy in accordance with law. P. BHAVADASAN, JUDGE sb.