P L D 1963 Dacca 37 (PLP)

"While a co‑operative society is being wound‑up no suit or other legal proceeding relating to the business of such society shall be proceeded with or instituted against the liquidator as such or against the society or any member thereof except by leave of the Registrar and subject to such terms as he may impose."

3. The learned Munsif took the view that without the leave of the Registrar, such an application was not maintainable whereas the learned Additional District Judge took the opposite view and after considering the merits of the case, allowed the appeal and the application for setting aside the decree under Order IX, rule 13, C. P. C. The learned Additional District Judge was of the opinion that the ex parte decree passed on 20‑5‑54 against the defendants‑opposite parties who were appellants before him, did not come within the purview of the business of the Co‑operative Society for which the Liquidator was appointed.

4. Mr. Mahbubur Rahman the learned Advocate for the petitioners, contends that it is not disputed that the Co‑operative Society concerned was in the processes of being wound‑up and that, as such, its assets were to be collected. The Liquidator was a necessary party and permission to proceed against the Liquidator was incumbent upon the opposite‑parties under Order IX, rule 13, C. P. C.

5. Mr. Ruhul Islam, the learned Advocate, appearing for the contesting opposite‑parties, however, contends that the ex parte decree which was sought to be set aside cannot be regarded as the business of such Society within the meaning of section 133 (2) of the Bengal Co‑operative Societies Act, 1940. He has referred to section 86 of the said Act and has also con tended that on the analogy of the relevant provision of the Companies Act, it seems clear that such a leave was not necessary in the present case.

6. Section 86 of the Bengal Co‑operative Societies Act, 1940 seems to indicate that certain disputes as between certain specific class of persons should be referred to the Registrar. It does not provide for any contingency when a Liquidator is appointed. It is needless to state that section 133 of the said Act has been brought on the statute for safeguarding the interest of the Co‑operative Societies. The present suit, namely, Title Suit No. 54 of 1952, was in respect of certain properties claimed by the Society and there is no reason to suppose that the Liquidator was not interested in such properties as being assets belonging to the Kashimpur Co‑operative Societies. It seems on a plain reading of subsection (2) that the Legislature thought it expedient that whenever a party wanted to drag a particular Liquidator of a Society like that to the Court of law, the Registrar should have a chance to consider the merits or demerits of the possible case that may be instituted. It is very likely that the Registrar in appropriate cases, may advise the Liquidator to settle up the matter. In this way the Legislature might have thought it expedient to provide for possible minimisa tion of unnecessary troubles and proceedings and saving of costs. I do not quite appreciate as to how a dispute in regard to the immovable property as covered by Title Suit No. 54 of 1952 could not be regarded as, a business of such Society. I am unable to agree with the learned Additional District Judge that the ex parte decree passed on 20‑5‑54 in Title Suit No. 54 of 1952 did not come within the purview of the Co‑operative. Society for which the Liquidator was appointed. In my view, the learned Additional District Judge acted with material irregularity in the exercise of jurisdiction in so far as he thought that subsection (2) of section 133 of the Bengal Co‑operative Societies Act, 1940 was not applicable to the facts of the present case. As the application under Order IX, rule 13, C. P. C. is not maintainable for want of leave of the registrar, the question of consideration of merits of such application becomes unneces sary. I am also of the opinion that the provisions of the Companies Act are not a safe-guide for interpretation of the relevant provision of section 133 (2) of the Bengal Co‑operative Societies Act, 1940.

7. The result, therefore, is that this Rule is made absolute; the judgment and order as passed by the Additional District Judge are set aside and the order dated 31‑5‑60 as passed by the learned Munsif in Miscellaneous Case No. 219 of 1959 is restored. In view of the circumstances of the case, I do not, however, make any orders as to costs in this Rule. S. B./A. H. Rule made absolute.