The Villupuram Urban Co-operative Bank vs Balasubramania Mudali

Horwill, J.—In a dispute between the Secretary of the Villupuram Urban Co-operative Bank and member No. 719 of that Company an

award was passed by the Arbitrator under Rule 14 of the Rules framed u/s 43 of the Co-operative Societies Act, in which one Vaithilinga

Mudaliar and two undivided minors of his family were ordered to pay Rs. 281-6-9 to the Society with interest and costs and upon failure to do so

the property was ordered to be brought to sale. This award was sent to the District Munsiff of Villupuram for execution ; and he held after enquiry

that the third defendant had not been served in the Proceedings before the Arbitrator; and he therefore refused to execute the decree against the

share of the third defendant in the family property. In appeal the Additional Subordinate Judge of Cuddalore confirmed this decision, not only on

the ground that the third defendant was not served; but also on the ground that the third defendant, because he was a minor, could not be a

member of the Society and because the rules relating to arbitration provide for the decision of disputes to which members only were parties.

It has been made clear by this Court in a series of decisions - and the decision in appeal against Appellate Order No. 146 of 1933 is one of the

latest - that it is not open to an executing Court to sit in judgment over the Court which passed the decree which has to be executed. It cannot,

except in certain limited recognised cases, conduct enquiries to ascertain whether the decree was properly passed. If on the face of the record it is

clear that some illegality has been committed, the executing Court can refuse to execute. The question that has to be decided is whether there is

anything in the award passed by the Arbitrator in this case that shows that it is illegal. Clearly there is nothing in the decree which shows that the

minor was not served; and the executing Court therefore had to presume that the decree was properly passed against the minor. Whether a joint

family can be a member of the Co-operative Society is a question that may be open to discussion, although I think with due respect that the

learned Judges who decided AIR 1933 211 (Nagpur) were right in holding that a corporation, and therefore a joint family, could be a member of

the Co-operative Society. That in certain circumstances a family can be a member of the Society is also recognised in an earlier case of the same

Court, AIR 1931 48 (Nagpur) which has been referred to by the learned Advocate for the third defendant in this Court. It is argued that there is

nothing in the decree which shows that the whole family was a member of the Society; but the question is not whether the decree shows that the

whole family was a member of the Society; but whether there is anything in the decree which shows that the whole family was not a member. On

the contrary, the award sets out the names of all the members of the family; and therefore it would seem that all the members of the family were

liable, because the family and not only the manager was a member of the Society. I am therefore of opinion that there is nothing in the award which

indicates that it is incorrect and ought not to be executed. If in fact the third defendant was not liable, either because he was not served or

otherwise properly represented before the Arbitrator, he is not without a remedy; but the executing Court must take the decree as it stands and

allow the Society to execute. If a minor is not properly represented in a suit, he is not a party to the suit, although his name may appear in the

records and in the decree. That being so, the executing Court is given no jurisdiction u/s 47, Civil Procedure Code.

The appeal is therefore allowed with costs throughout. Leave refused.