IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 SA.No. 515 of 1996() -------------------- AS.607/1990 of DISTRICT COURT, ERNAKULAM OS.76/1989 of MUNSIFF COURT, THIRUVANANTHAPURAM. .................... APPELLANT(S):2ND RESPONDENT/2ND DEFENDANT --------------------------------------------------------- ALLEPPEY DISTRICT WHOLESALE CONSUMERS CO-OPERATIVE SOCIETY LTD NO.103 REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.K.ANAND RESPONDENT(S): APPELLANT/PLAINTIFF AND 1ST RESPONDENT/1ST DEFENDANT ---------------------------------------------------------------------------- 1. ALEXANDER MATHEW S/O.V.A.MATHEW, SARADABHAVAN, JAGATHY, TRIVANDRUM WORKING AS SENIOR ANNOUNCER, AIR VAZHUTHACAUD, TRIVANDRUM. 2. THE STATION DIRECTOR, ALL INDIA RADIO VAZHUTHACAUD TRIVANDRUM. ADV. SRI.K.L.NARASIMHAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No.515 OF 1996 =========================== Dated this the 5th day of February,2010 JUDGMENT Respondent instituted O.S.76/1989 before Additional Munsiff court, Thiruvananthapuram seeking a decree for permanent prohibitory injunction restraining appellant from realising the amount due under the award, by attachment of the salary of the first respondent. First respondent was working in All India Radio, Thiruvananthapuram. First respondent contended that Ext.A3 letter was sent by the appellant requesting to attach Rs.500/- per month from the salary of first respondent for realisation of the amount due as per the award dated 15.2.1973 passed by the arbitrator of the appellant. The suit was filed contending that as the award was passed on 15.2.1973, after the expiry of 12 years from S.A.515/1996 2 the date of the award is barred by time and hence the decree cannot be executed and therefore the salary cannot be attached for realisation of the amount due under the award. Appellant resisted the suit contending that period of limitation is not applicable in respect of the Co-operative Societies and in any case whether the award is enforceable or not is a dispute coming under section 69 (1)(h)of the Co-operative Societies Act and therefore the suit is barred under section 69(1)(h) and 100 of the Co-operative Societies Act. Learned Munsiff on Exts.A1 to A3 and Ext.B1 dismissed the suit holding that the suit is not maintainable in view of the bar provided under section 69(1)(h) and Section 100 of the Co-operative Societies Act. First respondent challenged the decree before District Court, Thiruvananthapuram in A.S.607/1990. Learned District Judge found that first respondent is not challenging the award but only contending that his salary cannot be attached for realisation S.A.515/1996 3 of the amount due under the award and an award could be executed only as provided under section 76 of Co-operative Societies Act and Ext.A3 is not an order of attachment but only a request to the second respondent to recover Rs.500/- from the salary. Learned District Judge therefore found that first respondent is entitled to get a decree restraining the appellant from realising Rs.500/- per month from the salary of the first respondent pursuant to Ext.A3 demand, making it clear that the appellant society is entitled to realise the same as provided under section 76 of the Co-operative Societies Act. It is being challenged in the appeal by the second defendant society. 2. The Second Appeal was admitted formulating the following substantial questions of law. 1. Whether on the facts and circumstance of the case court below is right in going beyond the S.A.515/1996 4 pleadings and to enter into a finding that by virtue of Section 76 of the Kerala Co-operative Societies Act, there is no valid attachment. particularly when there is an arbitration award, against the plaintiff and the amount is due under the award. 2. Whether on the facts and circumstances of the case first appellate court is right in holding that the plaintiff is entitled to get an order of permanent injunction to evade his legal liability without considering the S.A.515/1996 5 question of limitation. 3. Learned counsel appearing for the appellant and first respondent were heard. 4. An award was admittedly passed against the first respondent for payment of Rs.35,565.34 on 15.2.1973. As first respondent was working in All India Radiom Ext.A3 request was sent to recover Rs.500/- per month from the salary of the first respondent towards the amount due under the award . Learned District Judge granted the decree for injunction finding that the said request was not issued as an order of attachment, as provided under section 76 of the Co-operative Societies Act and therefore it cannot be enforced and hence first respondent is entitled to a decree for injunction. It was made clear that the said decree will not affect the rights of the appellant society to realise the amount due by recourse to the procedure provided under section 76 of the Co-operative Societies Act. S.A.515/1996 6 5. The argument of the learned counsel appearing for the appellant is that when first respondent did not challenge the enforceability of Ext.A3 on the ground that it was not issued as provided under section 76 of the Co-operative Societies Act, learned District Judge was not justified in granting a decree based on a fact which was not pleaded. True, the plaint does not disclose that first respondent had challenged the enforceability of Ext.A3 demand, on the ground that the said order is not issued in consonance with the provisions of Section 76 of Co-operative Societies Act. On the other hand, Ext.A3 demand was challenged firstly on the ground that award was passed ex parte and secondly on the ground that execution of the award is barred by time. Learned Munsiff and the learned District Judge did not consider the question of bar of limitation. Instead learned Munsiff dismissed the suit finding that it is a dispute between the society and first S.A.515/1996 7 respondent and therefore as provided under section 69(1)(h) and Section 100 of Co-operative Societies Act, the suit is not maintainable. The District Judge found that when Section 76 of the Act do not authorise issuance of Ext.A3 for realisation of the amount due under the award, it is not a dispute coming under section 69(1)(h) barred under section 100 of Co-operative Societies Act and hence granted the decree. 6. Section 76 provides the execution of the award passed under section 70 of the Act. Under clause (a) an award under section 70 is executable as a decree before the civil court, as if it is a decree passed by the civil court. Clause (b) provides for execution of the award by recourse to the provisions of Revenue Recovery Act. Under the proviso, such request is to be sent to the District Collector and it is to be within a period of 12 years from the date of the award. Clause (c) provides the third mode of execution. It reads:- S.A.515/1996 8 “be executed by the Registrar or any other person subordinate to him empowered by the Registrar in his 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.” Clause (c) does not provide the period within which it could be executed, as is the case with clause (b), when the award is to be executed by course to revenue recovery proceedings. But under clause (c) the award could be executed “either by the attachment and sale or sale without attachment of any property of the person or a society” against whom the order, decision or S.A.515/1996 9 award has been obtained or passed.” Therefore if the award is being executed under clause (a) as if it is a decree, all the modes of execution available under Order XX1 of Code of Civil Procedure is available. If the award is executed as provided under clause (b), as if it is an arrears of public revenue due on land, all the modes provided under the Revenue Recovery Act is available. On the other hand, if the award is being executed under the third mode namely clause (c), it could be executed only against the property of the debtor and that could either by attachment and sale or sale without attachment. It does not provide for attachment of the salary. In such circumstances, the learned District Judge was justified in awarding a decree holding that Ext.A3 demand is not enforceable as by such demand the amount due under the award cannot be realised by attachment of the salary. Though first respondent did not take it as a ground, as it is a S.A.515/1996 10 question of law the learned District Judge was justified in granting the decree even without pleading. Learned District Judge also specifically provided that the appellant society is entitled to proceed to realise the amount legally as provided under section 76 of the Act. In such circumstances, I find no necessity to interfere with the decree and judgment passed by the learned District Judge. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO.558 /1996 --------------------- JUDGMENT 5th FEBRUARY,2010