P L D 1962 (W (PLP)

ANWARUL HAQ, J.‑This order will dispose of Writ Petitions Nos. 123 and 449 of 1961, which raise a similar question of law, although on slightly different facts.

2. Writ Petition No. 123 of 1961 is by Ghulam Qadir against whom a preliminary decree for the recovery of Rs. 28,905‑8‑0 was passed on the 8th October 1957, by the Senior Civil Judge, Lyallpur, in favour of the Lyallpur Central Co‑operative Bank (Respondent No. 3 in the petition) on the basis of a mortgage deed executed by the petitioner on the 30th April 1953. The petitioner filed a Regular First Appeal (No. 5 of 1958) against this decree, which is still pending in this Court. It appears that the main point agitated in the first appeal is that the land being agricultural land could not be sold in execution of the mortgage decree by virtue of the prohibition contained in section 16 of the Punjab Alienation of Lands Act. A stay order was granted in favour of the petitioner restraining the sale of the land pending the disposal of the appeal.

3. In 1960, the Co‑operative Societies (Repayment of Loans) Ordinance (XXXIV of 1960) was promulgated and purporting to act under section 4(2) of the said Ordinance, the Registrar of Co‑operative Societies (Respondent No. 1) has served a notice on the 28th December 1960 on the petitioner directing him to make payment of the decretal amount in the manner prescribed in the notice, It is contended that the notice is illegal, ultra vires, malicious, void and inoperative for the reasons that the amount due from the petitioner under the decree of the Civil Court is not covered by the definition of the word "loan" given in the said Ordinance as it is secured by a mortgage ; that, in any case, the amount could not be described as a to :n as the Co‑operative Bank has already obtained a decree in respect thereof; and finally that no proceedings could be taken against the petitioners in view of the stay order obtained by him from the High Court in the Regular First Appeal No, 5 of 1958.

4. Writ Petition No. 449 of 1961 is by two persons, namely, I. Khalida Bano and her husband Muzaffar Hussain, who had taken a loan from the Central Co‑operative Bank, Jhang, (Respondent No. 3 in the petition). The loan was taken in 1951 and on the 30th of July 1956, the Co‑operative Bank, Jhang obtained an ex parte decree from the Senior Civil Judge, Jhang, against the petitioners for the principal amount of Rs. 36,801‑6‑6 plus interest to the tune of Rs. 7,'702‑1‑

6. In 1959, the decree‑holder started execution proceedings m the Civil Court, which are still pending. In the meantime, however, action was also initiated under the Co‑operative Societies (Repayment of Loans) Ordinance (ICXXIV of 1960) and a notice has been served by the Registrar, Co‑operative Societies, on the petitioners on the 28th December 1960, directing them to pay the amount in the manner indicated in the notice. It is contended that the notice is illegal, inoperative. ultra vires, void, improper and malicious, and the reasons for this contention are virtually the same as in the other writ petition. An additional ground urged is that the bank cannot proceed simultaneously for the execution of the decree under the Civil Procedure Code as well as adopt coercive measures against the petitioners under the Co‑operative Societies (Repayment of Loans) Ordinance (XXXIV of 1960). The final point made is that, in any case, execution not having been taken out within three years of the passing of the decree, the loan could no longer be realised and was not payable within the meaning of the definition given in the Ordinance.

5. The term "loan" is defined in clause (c) of section 2 of Ordinance XXXIV of 1960 as follows "Loan' means loan, whether of money or In kind which has not been secured or is insufficiently secured and taken‑ (i) from a Co‑operative Society, not being a Co‑operative Bank, by any person other than a member of such Society, or (ii) from a Co‑operative Bank by any person including any member thereof but not a Co‑operative Society, and includes any transaction which, in the opinion of the Registrar, is in substance a loan as aforesaid . . . . . . Explanation.‑A loan is "insufficiently" secured if it is not secured by mortgage, pledge, hypothecation or assignment of such property of the borrower or of his surety or of both as, in the case of a loan not exceeding thirty thousand rupees, the Co‑operative Society concerned, and, in the case of a loan exceeding thirty thousand rupees, the Registrar, may think adequate."

6. It will be seen that the transactions in the present two petitions clearly fall within the definition of term "loan", even though they may have been secured, and the question that arises in each case is whether the loans are sufficiently or insufficiently secured, a question which has to be decided either by the Co operative Society concerned or by the Registrar depending on the amount involved. If the relevant authority comes to the conclu sion that the loan Is Insufficiently secured then it would fall to be properly dealt with under the provisions of the Ordinance. In the present two cases, It Is open to the petitioners to appear before the Registrar in response to the notices issued by trim and to satisfy him that the loans are not "insufficiently secured". If they succeed , In doing so, it is clear that the Registrar shall not proceed further in the matter. It is clear to us, however, that this is a matter, the determination of which, in the first instance, rests with the authorities specified in the Explanation to the definition reproduced above.

7. The argument that as in both cases a decree had been obtained from a Civil Court, the liability of the petitioners can no longer be described as a "loan" is clearly without substance for the reason that the existence of the decree in the two cases is in fact positive proof that the loans were due from the petitioners. As long as these decrees stand, the petitioners are not in a position to dispute the existence of the loans at all.

8. The procedure for the repayment of loans is outlined in section 3 of the Ordinance and it is to take effect "notwithstand ing anything contained in any other law for the time being In force or in any agreement or instrument". This being the case, the pendency of execution proceedings in a Civil Court would not appear to be a bar to the initiation of proceedings under the Ordinance it may be, although we express no opinion on the point, that an argument could be raised before the executing Court that it should stay its hands in view of the action initiated by the Registrar, Co‑operative Societies, under Ordinance XXXIV of 1960.

9. With regard to the effect of the stay order obtained by the petitioner in Writ Petition No. 123 of 1961, suffice it to say, that the stay order issued by the High Court in the first appeal filed by the petitioner is only restricted to the sale of the mortgaged land and accordingly it cannot operate to restrain other proceedings before the Registrar, Co‑operative Societies, for the recovery of the loan in question. On the question of the decree having become time‑barred which is raised in W. P. 449, we are informed that on the 10th of November 1958, that is within three years of the passing of the decree, the two petitioners signed an acknowledgment of the debt. The existence of the acknowledgement and their signatures on it are admitted by the petitioners, but it is alleged that the same were obtained under coercion of Martial Law Authorities. This assertion is made at the Bar by the learned counsel, but it is not supported either by an affidavit or by any material on the record. In writ proceedings it is not the practice of this Court to embark upon an enquiry necessitating the recording of evidence to determine the correctness or otherwise of allegations of this kind. For our present purposes we simply take notice of the existence of this acknowledgment on the basis of which it would appear that the decree passed against the petitioners had not become unexecutable by reason of lapse of time. In other words, the loan outstanding against the petitioners was a loan which was "repayable on any date earlier than one year preceding the commencement of the Ordinance", i.e., the 15th of August 1960, and as such is was within the purview of section 3 of the Ordinance.

10. For all these reasons, we see no force in these petitions, which are dismissed with costs. S. B.