Karnataka High Court
Omkar Co-Operative Credit Society Ltd vs Lakkappa Sidaramappa Dabaja on 21 October, 2024
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NC: 2024:KHC-D:15132
WP No. 106023 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.106023 OF 2019 (GM-CPC)
BETWEEN:
OMKAR CO - OPERATIVE CREDIT SOCIETY LTD.,
HOSPET GALLI, GOKAK - 591 218,
REPRESENTED BY RAMAPPA KARDIGUDDI,
SECRETARY.
...PETITIONER
(BY SRI RAMESH N. MISALE, ADVOCATE)
AND:
1. LAKKAPPA SIDARAMAPPA DABAJA,
AGE:50, OCC:BUSINESS,
R/O: PAMALDINI, TQ: GOKAK - 591 306.
2. PARASHRAM LAXMAN SHNGALAPUR,
AGE: 63 YURS, OCC: BUSINESS,
R/O: BASAVA NAGAR, TQ: GOKAK - 591 218.
Digitally signed
by SAROJA
HANGARAKI
3. SANJU TANAJI ARABALLI,
Location: High
Court of
AGE: 48 YRS, OCC: BUSINESS,
Karnataka
R/O: MARATHA GALLI,
TQ:GOKAK - 591 218.
...RESPONDENTS
(BY MS. ARADHANA V. MANVI, ADVOCATE FOR
SRI JAGADISH PATIL, ADVOCATE FOR R2;
NOTICE TO R1 AND R3 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR
ORDER OR DIRECTION QUASHING THE IMPUGNED ORDER PASSED
BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE, COURT
GOKAK, IN E.P.NO.5/2018 DATED 28.11.2018, DISMISSING THE
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NC: 2024:KHC-D:15132
WP No. 106023 of 2019
EXECUTION PROCEEDINGS, COPY OF THE SAID ORDER DATED
28.11.2018 IS PRODUCED AS ANNEXURE-A AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present petition is filed by the decree holder
challenging the order dated 28.11.2018 passed in
E.P. No.5/2018 by the I Additional Senior Civil Judge,
Gokak1, whereunder, the execution petition filed by the
petitioner has been dismissed.
2. Learned counsel, Sri.Ramesh.N.Misale appearing
for the petitioner assailing the order of the Executing Court
contends that the petitioner has obtained the certificate
issued by the Registrar under Section 101 (1) (a) of the
Karnataka Co-Operative Societies Act, 19592 and that the
petitioner is entitled to execute the same before the Civil
Court as the decree of the Civil Court. He further places
Hereinafter referred to as the 'Executing Court'
Hereinafter referred to as the 'Act'
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reliance on the judgments rendered by the Co-ordinate
Bench of this Court in the cases of M. Sadananda S/o
Late M Subba Rao v/s Chief Executive Officer/ The
General Manager, Kadaba
Co-Operative Agricultural Bank Ltd, Kadaba, Puttur
Taluk, Dakshina Kannada District3 , Basavaraju v/s
Secretary, Sahakari Bhandara, Sira Town and
another4, NAGENDRA RAO L. AND ANOTHER v/s
KOLLIMI KESIMBI AND OTHERS5 and Timmappa S/o
Subraya Hegde v/s The Assistant Registrar of Co-
operative Societies and another6 and seeks for
allowing of the present writ petition.
3. Per contra, learned counsel Ms.Aradhana.V.Manvi
appearing for the learned counsel Sri.Jagadish Patil for
respondent No.2 contends that the Executing Court has
rightly appreciated the fact that in terms of Section 101
2010 (5) KAR.L.J. 574
1996 SCC ONLINE KAR 513
1974 SCC ONLINE KAR 259
ILR 2014 (1) KAR 551
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(1) (b) of the Act, the petitioner is required to approach
the Registrar to execute the award. Hence, she seeks for
dismissal of the writ petition.
4. Section 101 (1) (a) of the Act stipulates that is in
respect of an order, decision or award as stipulated in sub-
section (1) Section 10, if a certificate has been issued by
the Registrar, the same shall be deemed to be a decree of
the Civil Court and shall be executed in the same manner
as a decree. Section 101 (1) (b) also provides for
execution in terms of what is stated therein.
5. In the present case, the petitioner has produced
the certificate dated 20.01.2018 (Annexure-C), which has
been issued in Form No.2 by the Assistant Registrar of Co-
operative Societies, Bailhongal Sub-Division, Bailhongal,
which stipulates that the award is executable as a decree
of the Civil Court under Section 101 (1) (a) of the Act.
6. This Court in the case of Timmappa6 as held has
follows:
"3. I find force in the submission made by the
learned counsel for respondent No.2. In my opinion,
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a certificate is issued under Sec.101(1)(a) of the Act
to execute an award passed under Sec.71 of the Act
and as stated in the said provision such a certificate
is deemed to be a decree of a Civil Court and shall
be executed in the same manner as a decree
of such Court. Rule 33-B of the Rules has no role
to play in the issuance of a certificate. This becomes
obvious by a plain reading of the aforesaid two
provisions namely Sec.101(1)(a) of the Act and Rule
33-B of the Rules. It is stated that the award
referred to above is challenged before the
Karnataka Appellate Tribunal, Bangalore in Appeal
No.506/2012. It is not the case of the petitioner
that the award is stayed by the Appellate Tribunal.
Hence, I find no legal infirmity in the issuance of
the certificate dated 28.12.2011 (Annexure-H) or
the pursuant execution proceeding in E.P.
No.2/2012 to warrant interference by this Court."
(emphasis supplied)
7. This Court, in the case of M. Sadananda S/o
Late M Subba Rao3 as held has follows:
"6. A perusal of the same, would depict that certificate
issued by the Registrar or any person authorised by him in
the said behalf, is to be deemed a decree of Civil Court for
purpose of executing the same before the Civil Court. In the
instant case the award dated 9-2-2001 has been passed to
reinstate the petitioner and hold a fresh enquiry and such
being the position, the certificate has been issued by the
Assistant Registrar of co-operative Societies calling upon the
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respondent herein to pay certain amounts which admittedly
is not awarded under the award dated 9-2-2001.
Considering this fact Executing Court has found that there is
no award passed for payment of amount and accordingly
held that the certificate cannot be executed. A certificate
issued by the Registrar or any person authorised by him
under clause (a) of sub- section (1) of Section 101 enable
the person in whose favour the award is passed to file an
execution petition before the Civil Court for executing the
award. Thus, it would emerge from combined reading of
Section 101(1)(a) that in order to execute the award
through the process of Civil Court, the issuance or grant of
certificate would be necessary without which execution
petition cannot be filed. The issuance of certificate signed by
the Registrar or any person authorised by him would have to
be construed as enabling provision. A person in whose
favour award has been passed, would entitled to ignite the
execution proceedings before the Civil Court on the strength
of such certificate. The award may also be executed by the
authorities designated by the Registrar or such other person
empowered under the Act itself. Then in such an event the
certificate contemplated under Section 101(1)(a) would not
arise at all. In view of this it cannot be held that the
certificate if it were to be contrary to award, would also
become executable."
(emphasis supplied)
8. The Executing Court has merely held that in view
of Section 101 (1) (b) of the Act before approaching the
Civil Court the decree holder has to approach the Registrar
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under the Act. The Civil Court has not noticed Section 101
(1) (a) of the Act, which enables execution of an
order/decision/award as a decree of the Court consequent
to issuance of a certificate by the Registrar.
9. Having regard to the fact that the certificate dated
20.01.2018 has been issued, the Civil Court has
erroneously rejected the Execution Petition.
10. In view of the aforementioned, the following:
ORDER
a) The writ petition is allowed.
b) The order dated 28.11.2018 passed in E.P
No.5/2018 by the I Additional Senior Civil Judge,
Gokak is set aside.
c) The petitioner shall appear before the
Executing Court on 20.11.2024, consequent to
which, the executing Court shall proceed further
in E.P No.5/2018 in accordance with law.
Sd/-
(C.M. POONACHA)
JUDGE
PMP
