The Commissioner of Income Tax, vs. M/s Chaitanya Wines,

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934 CRP.No. 442 of 2010 ( ) ----------------------- E.P IN ARC.2965/2006 of SUB COURT, TIRUR DATED 22-05-2010 PETITIONER/PETITIONER: ---------------------- THE SECRETARY, PARAPPANANGADI CO-OPERATIVE SERVICE BANK LTD. PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.SAJU.S.A RESPONDENT(S)/RESPONDENT: ------------------------- CHAKKAPPANTEPURAKKAL MOIDEENKOYA, S/O. PARUKUTTY, RAYIRIMANGALAM AMSOM, TANUR DESOM TIRUR TALUK-676 303 BY ADV. SRI.NIRMAL. S

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-02-2013, ALONG WITH CRP. 443/2010, CRP. 444/2010, CRP. 445/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

'CR' THOMAS P.JOSEPH, J. ========================= C.R.P.Nos.442, 443, 444 and 445 of 2010 ============================ Dated this the 15th day of February, 2013 O R D E R Question raised for a decision is whether, to an application under Rule 95 of Order XXI of the Code of Civil Procedure (for short, "the Code”) for delivery of property purchased in Court auction in execution of an award passed by the Arbitrator under the Kerala Co- operative Societies Act, 1969 (for short, "the Co-operative Societies Act”), period of limitation is governed by Articles 134 or 137 of the Limitation Act, 1963 (for short, "the Act”)?. 2. Petitioner is a Co-operative Service Bank constituted under provisions of the Co-operative Societies Act. Respondents availed loans from the petitioner. They defaulted repayment. Petitioner moved the arbitrator as provided under the Co-operative Societies Act and obtained awards for realisation of the amount due. Petitioner filed execution petitions in the Sub Court, Tirur along with copy of the awards and certificates as provided under Sec.76(a) of the Co-operative Societies Act and proceeded against property of respondents. Property of respondents were sold in court auction and purchased by the petitioner. Sale certificates were issued to the petitioner. After one year of the sales becoming absolute, petitioner

C.R.P.Nos.442, 443, 444 and 445 of 2010 2 filed applications in the Sub Court, Tirur under Rule 95 of Order XXI of the Code seeking delivery of properties. Learned Sub Judge held that the applications are barred by limitation as they are filed after one year of the dates on which the sales became absolute as provided under Art.134 of the Act, refused to number the applications and dismissed the same. Those orders are under challenge. 3. The learned Senior Advocate for petitioner has contended that the award of the arbitrator as per Sec.76(a) of the Co-operative Societies Act, is deemed to be a decree of the Civil Court only for the purpose of execution. It is argued that 'execution' is over when, in satisfaction of the deemed decrees property of respondents were sold in court auction and purchased by the petitioner. An application for delivery of property purchased in court auction is not 'execution' of the deemed decree. It is only for the limited purpose of the enquiry contemplated under Sec.47 of the Code, and that too, by virtue of clause (b) of Explanation 11 to Sub Sec.(3) of Sec.47 of the Code added by Act 104 of 1976 that all questions relating to delivery of possession of property purchased in court auction could also be deemed to be questions relating to the execution, discharge or satisfaction of the decree. Sec.76(a) of the

C.R.P.Nos.442, 443, 444 and 445 of 2010 3 Co-operative Societies Act does not say that for any purpose other than execution the award is to be deemed to be a decree of the Civil court. Art.134 of the Act which deals with delivery of possession by a purchaser of immovable property at a sale in execution of a decree, therefore has no application as award of the arbitrator is to be deemed to be a decree of the civil court only for 'execution' (which according to the petitioner does not take in an application for delivery of property under Rule 95 of Order XXI of the Code). Art.136 of the Act also has no application as the said provision governs execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. Hence, in the absence of any other specific provision in the Act dealing with an application under Rule 95 of Order XXI of the Code when in 'execution' of the deemed decree (here, the award) property is purchased in Court auction, it is Art.137 which applies. That Article provides three years from the date on which the right to apply accrued. The right to apply for delivery of possession accrued when the auction sales in favour of petitioner were confirmed. The applications under Rule 95 of Order XXI of the Code having been preferred within three years from the dates of confirmation of sales are within time. Learned Senior Advocate has referred me to the

C.R.P.Nos.442, 443, 444 and 445 of 2010 4 decisions in Tripunithura Peoples Co-operative Bank Ltd. Vs. Kunhan Thirupad and Anr. (25 Cochin LR 724), D.S.Pillaly Vs. Madappan Pillay (AIR (39 )1952 Travancore Cochin 37), Anto Mamkoottam Vs. Peruvanthanam Service Co-operative Bank (1996(2) KLT 962), Mancheri Puthusseri Ahammed & Ors. Vs. Kuthiravattom Estate Receiver (1996(6) SCC 185), K.R.Lakshminarayan Rao Vs. New Premier Chemical Industries ((2005)9 SCC 354, 2005 KHC 5098), Simon Varghese Vs. Kidangoor I.R.P.E CO-operative Society (2006 (1) KLT SN 27 (Case No.37)) and Jose Joseph Vs. Omanakutty Amma (2012(1) KLT 625). 4. The learned counsel for respondents contend that by a deeming fiction provided under Sec.76(a) of the Co-operative Societies Act, award of the arbitrator is to be deemed to be a decree of the Civil Court. The award should be taken as equivalent to a decree of the Civil Court for all purposes including application of the Code and the law of limitation and hence purchaser/petitioner ought to have filed the applications under Rule 95 of Order XXI of the Code within the period of limitation prescribed by Art.134 of the Act. Since Art.134 of the Act applied, taking recourse to the residuary Article (Art.137) of the Act does not arise. Learned

C.R.P.Nos.442, 443, 444 and 445 of 2010 5 counsel have placed reliance on the decisions in B.P.Andre Vs. Supdt. Central Jail(Bhagwati) (AIR 1975 SC 164), M.V.Ali Vs. Kunjannamma Philipose (1975 KLT 527) and Ayancheri Service Co-op. Bank Vs. Moideen (1988(2) KLT 1035). 5. Sec.76 of the Co-operative Societies Act deals with execution, among other things of awards made under Sec.70 and states that if the order/award is 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;”

(emphasis supplied) As per the said provision if the award is not carried out, when a certificate is signed by the Registrar or any person authorized by him in that behalf, such award shall be deemed to be a decree of Civil Court and shall be executed in the same manner as a decree of such Court. 6. In Tripunithura Peoples Co-operative Bank Ltd. Vs. Kunhan Thirupad and Anr. (supra), it is held in page 729 (referring to similar provisions in the Co-operative Societies Regulation (4 of 1088),

C.R.P.Nos.442, 443, 444 and 445 of 2010 6 “The decision of the Registrar remains a decision of the Registrar and does not become a decree of the Civil Court. The Civil Court enforces the decision “as if it were a decree of that Court”. What is that a Civil Court does when a decree of its own is put “in execution”?. It examines it to see if it is executable at the time when the application for execution is presented. If the application is presented in time according to the provisions contained in the Limitation Regulation, steps are ordered” 7. In D.S.Pillaly Vs. Madappan Pillay (supra) a similar question as in the present case arose for a decision. There, pursuant to a purchase of property in the auction conducted in accordance with the provisions of the Travancore Co-operative Societies Act, purchaser sought delivery of possession through the Civil Court. Question arose whether it is Arts.164 or 165 of the Travancore Limitation Act (corresponding to Arts.134 and 137 of the Act) that would apply. An argument was advanced that as sale was effected by the authority under the Co-operative Societies Act and what is filed in the Civil Court is only an application for delivery of possession of property purchased in such auction, in the absence of any provision in the Travancore Co-operative Societies Act, question of limitation would not arise. The Division Bench refused to accept

C.R.P.Nos.442, 443, 444 and 445 of 2010 7 that contention. It was held that the words “in the same manner as a decree of such Court” or words similar to them made all provisions of the Code and the Travancore Limitation Act applicable to execution (of the award) by a civil court. The Division Bench however, did not answer the question whether it is Arts.164 or 165 of the Travancore Limitation Act (corresponding to Arts.134 and 137 of the Act) that would apply since on the facts of that case, application for delivery was preferred even beyond three years. But from the above decision it is clear that the words “be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such Court” in Sec.76(a) of the Co-operative Societies Act make the provisions of the Code and the Act applicable to such execution. Art.136 of the Act, it is agreed by both sides and going by the said provision also, has no application to the facts of the case. Then the question is whether it is Art.134 of 137 of the Act that would govern an application under Rule.95 of Order XXI of the Code when in execution of the awards through the civil court properties were purchased by the petitioner in court auction?. 8. The decisions in K.R.Lakshminarayan Rao Vs. New Premier Chemical Industries , Simon Varghese Vs. Kidangoor I.R.P.E CO-operative Society and K.R.Lakshminarayan Rao Vs.

C.R.P.Nos.442, 443, 444 and 445 of 2010 8 New Premier Chemical Industries (supra), all distinguished proceedings in 'execution' with an application for delivery. The said decisions are to the effect that 'execution' comes to an end either by payment of the decreetal amount or by sale of property of the judgment debtor for satisfaction of the decree amount. An application for delivery of possession of property purchased in court auction is not 'execution'. It is by Amending Act 104 of 1976 that clause (b) of Explanation 11 of Sub Sec.(3) of Sec.47 was incorporated in the Code whereby it is stated that for the purpose of that section, all questions relating to delivery of possession of the property shall also be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of Sec.47. It is in the light of the above decisions that learned Senior Advocate has contended that an application for delivery of possession cannot be treated as 'execution'. The said argument is based on Sec.76(a) of the C-operative Societies Act extracted above which states that award of the Registrar shall be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Civil Court. The argument is that though by virtue of Sec.76 (a) of the Co-operative Societies Act for the purpose of 'execution' (alone) an award of the arbitrator could

C.R.P.Nos.442, 443, 444 and 445 of 2010 9 be deemed to be a decree of the Civil Court, such award does not transform into a decree of the Civil Court and instead, continues to be a deemed decree of the Civil Court only for the limited purpose of 'execution' which is over by sale of the property in Court auction and cannot be deemed to be a decree of the civil court for any other purpose including an application for delivery. 9. In Anto Mamkoottam Vs. Peruvanthanam Service Co-operative Bank (supra) question considered was whether an appeal against an order passed under Rule 58(3) of Order XXI of the Code is one coming under Sec.96 of the Code. It was held that appeals which arose from such orders are to be treated as a decree of the Civil Court and such appeals though preferred under Sec.96 of the Code form a third category of appeals which are to be numbered as Appeal (miscellaneous). It is argued that it was so held since by the deeming provision in Rule 58(3) of Order XXI of the Code an 'order' does not become a 'decree' but, is only to be treated as a decree for the limited purpose of an appeal. 10. In Mancheri Puthusseri Ahammed & Ors. Vs. Kuthiravattom Estate Receiver (supra) the effect of a legal fiction is explained. It is held that when a legal fiction is created, the expressed words of the Section have to be given their full

C.R.P.Nos.442, 443, 444 and 445 of 2010 10 meaning and play in order to find out whether the legal fiction contemplated by the expressed provision of the statute has arisen or not on the facts of the case. In interpreting a provision creating legal fiction, the Court has to ascertain for what purpose the legal fiction is created. After ascertaining that, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction, it is not to be extended beyond the purpose for which it is created or beyond the language of the fiction by which it is created. 11. In short, the argument is that the legal fiction of deeming the award of arbitrator as a decree of the Civil Court under Sec.76 (a) of the Act can apply only in the matter of “execution” and not with respect to an application under Rule 95 of Order XXI of the Code which according to the learned Senior Advocate is not 'execution'. 12. It is relevant to note the meaning of the expression “deemed to be”. In Leonard Vs. Grant (5 Feb. 11, 16)it is held, “When by statute, certain acts are “deemed to be” a crime of a particular nature, “they are such crime”, and not a semblance of it, nor a mere

C.R.P.Nos.442, 443, 444 and 445 of 2010 11 “fanciful approximation to or designation of the offence”. Cove, J. in R.Vs. Norfolk Co (60 LJ QB 380) states: “When a thing is “deemed to be” something else, it is to be treated as that something else with the attendant consequences, but it is not that something else”. In Malchand Agarwal Vs. Samtolal Agarwalla (AIR 1954 Assam 177) it is quoted from Commissioner of Income Tax, Bombay Vs. Bombay Trust Corporation (AIR 1930 PC 54): “where a person is “deemed to be” something, the only possible meaning is that whereas he is not in reality that something, the Act requires him to be treated as if he were” Again, in Darbarilal Vs. Dharam Wati (AIR 1957 Allahabad 541), the Full Bench of that Court stated, “when a thing is “deemed to be” something; the only meaning possible is that whereas it is not in reality that something, the Act directs that 'it should' be treated as if it were that thing.” 13. Leach, C.J. speaking for the Bench in S.V.Subba Rao Vs. Calicut Co-operative Urban Bank Ltd. (AIR 1940 Madras 635) has said,

C.R.P.Nos.442, 443, 444 and 445 of 2010 12 “An award under the Co-operative Societies Act when it is filed in a Civil Court under Sec.15(7)(c) has to be executed as a decree of the court and in effect it becomes a decree of the Civil Court”. Learned judge has referred to the opinion expressed by Rankin, C. J. in Re Belvedere Jute Mills Ltd. Vs. Hardwarimull & Co. (1927 I.L.R (55) Calcutta 499) which is thus: “if one looks at the question of limitation from the point of view of the different alternatives, there can be one inference only and that is that the words employed by the Legislature in subsec.1 of Sec.15 of the arbitration act, were intended to go to the question of limitation as well as to the question of procedure”. Leach, C.J. again observed in S.V.Subba Rao Vs. Calicut Co- operative Urban Bank Ltd. (supra) that there is no difference between Sec.15 of the Arbitration Act and Sec.15(7)(c) of the Co- operative Societies Act, 1912. When the relevant provisions of the Co-operative Societies Act, 1912 stated that the award is to be executed as a decree of the court, it meant that it became a decree of the Civil Court for all practical purposes including the procedure to be followed and the law of limitation to be applied.

C.R.P.Nos.442, 443, 444 and 445 of 2010 13 14. In Kunhumuhammad Vs. Eriyad Edavilangad Co- operative Society Ltd No.98 (36 Cochin LR 918) the decision in S.V.Subba Rao Vs. Calicut Co-operative Urban Bank Ltd. (supra) was followed. There, referring to the provisions of the Co- operative Societies Act (XXVI of 1113), it is held, “An award or decision under the Co-operative Societies Act when it is sent to a Civil Court has to be executed as a decree of the court and it becomes a decree of the court. The words ‘as if it were a final decree of the Court’ made all the provisions of the Civil Procedure Code and Limitation Act applicable to the execution of an award or decision under the Act”. At page 923, learned judge has made reference to the opinion expressed by Leach C.J in S.V.Subba Rao Vs. Calicut Co- operative Urban Bank Ltd. (supra) that the award when it is filed in the Civil Court has to be executed as a decree of the Court and in effect it becomes a decree of the Court. 15. Bhimsen Hanmant and Ors. Vs. The Urban Bank, Muddebihal(AIR (34) 1947 Bombay 370) has held the view that, “Awards which have to be executed in the same manner as decrees of the Civil Courts can legitimately be regarded as “decrees of the Civil Courts” within

C.R.P.Nos.442, 443, 444 and 445 of 2010 14 the meaning of Art.182 of the Limitation Act, 1908”. 16. The Madras High Court had occasion to refer to the effect of a deeming fiction in V.Ramaswamy Iyyer Vs. K Ramakrishnayya ((1969)2 MLJ 272). That Court was considering an application under Sec.18 of the Madras Buildings (Lease and Rent Control) Act(XVIII of 1960). It is held: “The real purpose and effect of Sec.18 of the Rent Control Act is to clothe the Civil Court with the jurisdiction to execute orders of the Special Tribunals under the Act as if it were its own decree meaning thereby that the order is executed as a decree of the Civil Court. Hence the provisions of the Limitation Act will be applicable to the execution proceeding under the Act”. 17. The Supreme Court, in B.P.Andre Vs. Supdt. Central Jail(Bhagwati) (supra) in paragraph 3 has held, “It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion”. The Supreme Court quoted with approval the observation of Lord Asquith, in East End Dwellings Co. Ltd Vs. Finsbury Borough Council (1952 AC 109, at page 132) which is as under:

C.R.P.Nos.442, 443, 444 and 445 of 2010 15 “If your are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative stage of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute stays that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs”. 18. In M.V.Ali Vs. Kunjannamma Philipose (supra) this Court was considering the question of limitation and execution of an order for eviction under the Kerala Buildings (lease and Rent Control) Act, 1965. Sec.14 of the said Act said that the order is to be executed by the Munsiff 'as if it were a decree passed by him'. The expression was held to be conferring upon the order the incidents and consequences of execution as a decree (of the Munsiff). It was held that the expression 'as if it were a decree passed by him' amounts to making an order of eviction a decree of the Munsiff and therefore of a Civil Court to give full play to the fiction and to the object of its creation. That construction would attract not only the provisions of the Code dealing with execution of

C.R.P.Nos.442, 443, 444 and 445 of 2010 16 the decree but also the provision of Art.136 of the Act so far as that case is concerned. 19. The discussion made above leads me to the conclusion that when Sec.76(a) of the Co-operative Societies Act states that on a certificate signed by the Registrar or any person authorised by him in that behalf an award of the arbitrator shall be deemed to be a decree of the Civil Court and shall be executed in the same manner as a decree of such Court, the legal fiction created is that award of the arbitrator, on entering the portals of Civil Court becomes a decree of the Civil Court shedding its character as an award passed by the arbitrator. Thereafter, for all purposes and intend, for applicability of the Code and the Act, the award continues to be a decree of the Civil Court. It is idle to contend that the deeming provision under Sec.76(a) of the Co-operative Societies Act is only for the purpose of “execution” and comes to an end when in execution of the deemed decree (award) property is sold in court auction. That argument, if accepted would mean that by virtue of the deeming provision in Sec.76(a) of the Co-operative Societies Act the award shall be deemed to be a decree of the Civil Court for the purpose of 'execution', but when the purchaser makes an application for delivery of property sold in court auction (pursuant

C.R.P.Nos.442, 443, 444 and 445 of 2010 17 to the award which was treated as a deemed decree), the court should again treat the award merely as an award of the arbitrator. The award of the arbitrator which entered portals of the civil court by virtue of Sec.76(a) of the Co-operative Societies Act shall not, and cannot have such a dual character. Such dual character is not contemplated under any of the provisions of the Co-operative Societies Act and in particular, Sec.76(a) of that Act. I must also notice that the expression used in Sec.76(a) of the Co-operative Societies Act is not “execution” so as to exclude an application for delivery of possession of property sold in court auction. The expression used in Sec.76(a) “shall be executed” in the same manner as a decree of the civil court. P.Ramanatha Iyer, in the Law Lexicon (1997 Edition) gives the expression “executed” the meaning, “done; finished; effected; fully performed; accomplished”. It follows that once the award is brought into the Civil Court and is deemed to be a decree of the Civil Court, it becomes a decree of the civil court and continues to be so for all purposes including delivery of possession. 20. If that be so, Art.134 of the Act alone would apply since that provision says that for delivery of possession by a purchaser of immovable property at a sale in execution of a decree (here, award

C.R.P.Nos.442, 443, 444 and 445 of 2010 18 of the arbitrator which has transformed into a decree of the civil court by a legal fiction) period of limitation is one year from the date on which the sale became absolute. 21. I therefore answer the question raised as under: (i) An application under Rule 95 of Order XXI of the Code for delivery of possession of immovable property purchased in court auction in execution of an award passed by the arbitrator under provisions of the Kerala Co-operative Societies Act, 1969 is governed by Art.134 of the Limitation Act, 1963. (ii) As Art.134 of the Limitation Act would apply, recourse to Art.137 of the said Act does not arise. 22. Back to the facts of these cases - it is admitted that the applications for delivery were preferred after one year of the dates on which sales in court auction became absolute. Hence as found by the learned Sub Judge, the applications preferred by petitioner under Rule 95 of order XXI of the Code are barred by limitation. The civil revisions are dismissed without any order as to costs. THOMAS P.JOSEPH, JUDGE Sbna