P L D 1952 Lahore 636 (PLP)

RAHMAN, J.‑One Ali Muhammad, a resident of Chak No. 130‑R.B., District Lyallpur, was a member of the Anjuman Imdad Qarza Bahmi of that Chak. The Society was dissolved and a liquidator appointed some time in 1933. Ali Muhammad died in 1945. The liquidator, Ataullah, passed a contribution order against the estate of the deceased in hands of his four sons, Nasarullah, Abdullah, Faiz Muhammad and Nabi Ahmad, on 16th June 1945. Execution was taken out, of that order, four times. The first application was lodged on 13th February 1946 and was filed as infructuous on 10th March 1947. This was followed by two other applications presented on 3rd April 1947 and 26th April 1949, which were similarly consign ed to the record room on 6th October 1947 and 3rd June 1949, respectively. The fourth application was presented in the executing Court on 22nd November 1949, and some land was attached as belonging to the deceased member, on 6th February 1950. The sons of the deceased objected to the attachment and there was an investigation of the objection. The executing Court held that the land involved was partly ancestral and partly non‑ancestral qua the objectors, that the ancestral portion of the land was exempt from attachment by virtue of section 9 of the Punjab Debtors' Protection Act 1936, that custom was to be the rule of decision of that question, that the application for execution was within limitation, that the liquidator's order having been passed against Nabi Ahmad when he was a minor, without his being represented by a proper guardian, was one without jurisdiction so far as the minor was concerned and not executable as such and that the order passed was ultra vires the liquidator inasmuch as it had been passed against the estate of a deceased member. In the result it was held that the liquidator had no power to proceed against the heirs of Ali Muhammad, deceased, by way of execution and the application was, therefore, dismissed with costs. The Co‑operative Society has challenged the order of the executing Court by this appeal. The first contention raised on behalf of the appellant by Mr. Asmat Ullah is that the order of the liquidator even against the minor Nabi Ahmad could not be said to be without jurisdiction though he was not properly represented because there were other members of the family, namely his brothers, who sufficiently represented the estate of their deceased father. Reliance was placed in this connection on certain observations of their Lordships of the Privy Council at page 313 of the authority reported as Khiarajmal v. Diam I L R (1905) 32 Cal.

296. On the other hand it was held by a Division Bench of this Court in Sayed Mahbub Hussain Shah v. Anjuman Imdad Qarza A I R 1942 Lah. 129 and Pir Taj‑ud‑Din v. Khambatta A I R 1938 Lah. 515 that a decree obtained against an unrepresented minor is a nullity. I do not feel it necessary to discuss this aspect of the case because in my opinion the appeal must fail on the second point which I proceed to examine. The executing Court has taken the view that no contri bution order could have been passed by the liquidator under section 42 of the Co‑operative Societies Act 1912, against a deceased member such as Ali Muhammad was Mr, Asmat Ullah has strenuously contended that this was an erroneous view. The finding is, however, supported by at least one authority published as Co‑operative Society, Patur v. Vasant Balkrishna A I R 1946 Nag.

317. That seems to be a case on all fours with the present one. It was held by the learned judge deciding that case that section 42 is limited to members and past members and that it has no application to a claim for contribution against the heirs of a deceased member. Consequently on liquidation of a society, the only remedy which the liquidator has against the heirs of a deceased member is by way of a suit. "Past member", according to the learned judge, does not mean a "deceased member" but a member who is alive at all material times. Mr. Asmat Ullah has been unable to cite any authority to the contrary but has tried to argue that the expression "deceased member" must be construed to mean a member who was deceased at or before the time the society went into liquidation. The Act itself draws a distinction between a past member and a deceased member, because liabilities of these two types of members are separately dealt with in sections 23 and 24 of the Act. The liability of a past member for the debts of a registered society as they existed at the time when he ceased to be a member, continues under the former section for a period of two years from the date of such cessation. On the other hand, the estate of a deceased member remains liable for a period of one year from the time of his decease, for the debts of a registered society, as they existed at that time, by virtue of the latter section. Under section 42 of the Act, a liquidator appointed under subsection (1), has the power inter alia to determine the contribution to be made by the members and past members of the society respectively, to the assets of the society. The omission of the words "deceased member" in this connection is significant. This is the only section which gives a liquidator power to make a contribution order. It follows, therefore, that the power of the liquidator in this connection is confined to the two classes of member mentioned in the section and does not extend to the case of, deceased members. Mr. Asmat Ullah would interpret the expression "deceased member" as referring to a person who had died before the date of dissolution of the society and would exclude a man who dies during the pendency of the liquidation proceedings, from within its scope. He argues that if the man dies after the date of dissolution, the crucial date being the date when the liquidation proceedings started, the liquidator would undisputably be vested with jurisdic tion to pass an order against him and that jurisdiction would not be taken away merely because the man dies in the meantime. This reasoning appears to me to be untenable. It may be, as he maintains, that for the purpose of section 24, the period of one year is to be counted backwards from the date of the dissolution of the society. The question is not one of limitation, however, but of interpretation of the term "deceased member". That term has not been defined any where in the Act. It must, therefore, be assigned its ordinary dictionary meaning. A deceased member, consequently, would be one who is dead at the material time. If he dies before an order for contribution can be passed, he must be described as a deceased member at the time of the proposed order and the jurisdiction of the liquidator to pass such an order would vanish. There is no warrant in the language of the Act for confining the definition of "deceased member" to those persons who had died before the start of the liquidation proceedings. The assumption that once the liquidator is vested with jurisdiction, he cannot be divested by any subsequent contingency, appears to me to be fallacious. On the same analogy, it could be argued that a Civil Court could pass a valid decree against a defendant in a case where it had jurisdiction to entertain the suit initially even though the defendant may die during the pendency of the action. It is however, settled law that a decree passed against a dead man would be a nullity. In these circumstances there appears to be c no escape from the conclusion that if a member of the society) dies during the pendency of the liquidation proceedings, he joins the category of "deceased members" and as such, his estate becomes immune from liability under a contribution order made subsequently by the liquidator. Such an order would be ultra vires the liquidator who would be constrained to have recourse to the ordinary Civil Court for redress against the estate of the deceased. I hold, therefore, that the view which found favour with the learned executing Court is correct. The appeal fails and is hereby dismissed but in view of the circumstances I make no order as to costs in this Court. K. M. A. Appeal dismissed.