The revision petitioners are the applicants in E.A. No.802/04 in E.P No.305/96 in O.S. No.216/86 on the files of the Additional Sub Court, North Paravur. The above suit was one for money filed against a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969, (for short 'the Act'), and the suit was decreed ex parte. E.P. No.305/96 was filed for executing the decree against the said Society, the first petitioner herein. The revision petitioners herein filed the above E.A. No.802/04 under Sections 47 and 151 of the Code of Civil Procedure for a declaration that the judgment and decree in O.S. No.216/86 are null and void on the ground that the Court, which passed the decree, lacks jurisdiction as per the provisions of the Act and also for a declaration that the sale of the plaint schedule property conducted on 14-1-2000 is a nullity.
2. It is the case of the revision petitioners that since the judgment debtor No.1 being an Industrial Co-operative Society registered under the Act is governed by the provisions of the said Act, when effective remedy is prescribed under Section 16 (9) of the Act and the statute expressly bars the power of the civil court under Section 100 of the said Act, the Court which passed the decree had no jurisdiction to pass such a decree and thereby the decree is a nullity.
3. Per contra, the respondents contended that the first revision petitioner had not filed any objection challenging the jurisdiction of the civil court and in the absence of any kind of objection before the trial court, the first revision petitioner is estopped from raising such a contention in the execution stage invoking Section 47 of the C.P.C. It is also contended that the objection raised above will go beyond the scope and extent of the jurisdiction under Section 47 of the C.P.C. as the Execution Court cannot go beyond or behind the decree. After considering the rival contentions, the court below dismissed the application on a finding that such an objection is not maintainable under Section 47 of the C.P.C. The legality and propriety of the said order are under challenge in this Revision Petition.
4. Heard both parties. The learned counsel for the revision petitioners advanced arguments challenging the findings of the court below, whereas the learned counsel for the respondents advanced arguments justifying the findings in the impugned order.
5. In view of the rival contentions, the short question that arises for consideration is whether the court below has failed to exercise the jurisdiction vested in it, or exercised the jurisdiction illegally or with material irregularity.
6. It is the case of the revision petitioners that the ex parte decree passed against them is a nullity for want of jurisdiction. According to them, alternative and effective remedy has been provided under Section 69 of the Act and Section 100 of the said Act bars jurisdiction of the civil court in deciding the disputes to be referred to the Registrar under Section 69 of the Act. The learned counsel further contended that the dispute involved in this original suit would come under the dispute contemplated under Section 69(1)(h) of the Act. According to Section 69(1)(h) of the Act, if a dispute arises between the Society and a creditor of the Society, such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. The term “dispute” referred to in Section 69 is also defined in Section 2(i) of the Act, which reads as follows:-
"2(i) "Dispute" means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not."
7. Going by the above Section, as rightly held by the court below, I am also of the view that the 'dispute' defined in Section 2(i) of the Act depends upon the enquiry into the fact to determine the nature of transaction between the Society and the Bank, including the purpose for which the loan was availed and the object for which the Society was formed and such an enquiry is not a matter within the domain of the Execution Court under Section 47 of the C.P.C. In short, a decision on the question of jurisdiction under Section 2(i) read with Section 69 of the Act is a matter, which requires adjudication with reference to the bye-laws of the Society at the trial side, upon facts pleaded by both parties. It was incumbent upon the petitioners/defendants to plead and prove in the original suit itself that the claim of the plaintiff was a dispute that falls under Section 69(1)(h) of the Act. In the absence of such a contention challenging the jurisdiction at the trial stage, the petitioners cannot raise such a contention under Section 47 of the C.P.C., in the Execution Court. Moreover, the scope and extent of jurisdiction that can be exercised by the Execution Court under Section 47 of the C.P.C. is confined to a question relating to the execution, discharge and satisfaction of the decree only. The above view is supported by the decision reported in Vettimoodu Milk Producers Co-operative Society Ltd. and others Vs. Catholic Syrian Bank Ltd. (1994 (2) KLJ 764). In this decision, this Court held as follows:-
"It is settled by the decision of the Supreme Court in Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) and the decision reported in Sunder Dass v. Ram Prakash (AIR 1977 SC 1201) that the executing court has the jurisdiction to entertain a plea that the decree sought to be executed is a nullity on the ground that the Civil Court had no inherent jurisdiction to entertain the suit in which the decree was passed and consequently the decree was a nullity. It is also settled that the invalidity of the decree sought to be set up should be apparent and it is not within the province of the executing court to go into a roving enquiry to find out whether the decree sought to be executed suffered from any defect of jurisdiction.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx The petitioners not having raised the plea of want of jurisdiction in the Civil Court during the trial of the suit, they would be barred by res judicata from raising the contention during the execution of the decree. "
In the light of the above discussions, keeping in view of the decision referred above, I find that there is no illegality or impropriety in any of the findings in the impugned order under challenge. This Revision Petition is devoid of merits and dismissed accordingly.
Sd/-
(K.HARILAL, JUDGE)
okb.