P L D 1962 (W (PLP)

Muhammad Naim for Plaintiffs. A. P. Fonseca for Defendant. Date of hearing : 17th April 1962. This execution application was filed on 20th February 1956, for the execution of an award made under the Bombay Co operative Societies Act and in respect of which a certificate had been issued by the Registrar under section 59 of the said Act. After this application for execution was filed the judgment‑debtor from time to time sought adjournments upon the promise of making payment and indeed he has made certain payments during the pendency of this execution application. Eventually on 16‑10‑1961 at the request of the judgment‑debtor three months time finally was allowed to him for payment of the balance. This not having been done, the properties covered by the equitable mortgage have been put for sale and the auction is to take place on 27‑4‑6a. After the proclamation and the other formalities had been completed Mr. Fonseca, the learned Advocate for the judgment‑debtor, made an application on 6‑4‑62, praying for the correction of the amount, in respect of which the auction was to be held. The matter thus came before me and at the hearing Mr. Fonseca has travelled beyond his application dated 6‑4‑62 and has raised a contention with regard to the power of arbitrator in this case to make provision for the payment of future interest. But before I proceed to deal with the contentions of the learned counsel it is necessary to give a few facts.

2. The judgment‑debtor bad borrowed a sum of Rs. 93,000 from the Mercantile Co‑operative Bank, of which he was a member. The judgment‑debtor having defaulted, a dispute arose which was referred to the Registrar, Co‑operative Societies and he assumed jurisdiction under section 54 of the Bombay Co operative Societies Act. He appointed a nominee before whom both the parties appeared and he made an award on 20th August 1955, in the sum of Rs. 1,34,286‑3 and further ordered payment of interest at the rate of 6% from 1st July 1954 until the debt was satisfied. On the 1st of November 1955, the Registrar granted a certificate to the judgment‑creditor under section 59 of the said Act. It was then that the present execution application came to be filed on 20th February 1956. In this application the judgment creditor has claimed Rs. 1,47,573‑9 which included interest upto the date of the application and Rs. 105 as arbitration fee. He also claimed subsequent interest and costs. On behalf of the judgment creditor a statement of accounts has been filed which shows a balance of Rs. 1,22,415.74 as the amount due including Interest upto the date of the sale, that is 27‑4‑62.

3. Mr. Fonseca raised two contentions before me. Firstly, be urged that the arbitrator's nominee had no jurisdiction to grant future interest. The argument was that the power to grant future interest is only given to a Court under section 34, C. P. C., and in so far as the arbitrator's nominee was not a Court he had no power to grant future interest. Reliance was placed upon a decision of the Supreme Court of India reported In Thawardas Pherumal v. Union of India (A I R 1955 S C 468). At page 476 of this report it was held that the claim of interest, which was allowed by the arbitrator, was bad in law and to that extent the award was modified. It was held that the arbitrator was not a Court and he had no power to grant interest. This decision has no application to the facts of the present case. The case before the Supreme Court of India was of an arbitration under Arbitration Act of 1940, in which an award made by the arbitrator has to come before the Court for being made the rule of the Court. In the present case, the arbitration was governed by section 54 of the Co operative Societies Act. The award made under this provision has been given a finality under section 57 of the said Act, and section 59 thereof empowers the Registrar to grant a certificate to the effect that the award has not been carried out and upon such a certificate being granted, it is deemed to be a decree of a Civil Court and has to be executed in the same manner as provided by sub‑clause (a) of section

59. Therefore, the short ground upon which the objection must be repelled is that the matter has come before me in execution and the executing Court has no power to go behind the decree. That this decree was not passed by a Court makes no difference in view of the express provision of section 59 of the Act. It is a decree and has to be executed as such. The question of interest was also within the jurisdiction of the Registrar's nominee and would come within the definition of dispute and was, therefore, liable to be decided in the arbitration proceedings. It was open to the judgment‑debtor to raise the question before the arbitrator and if he was not satisfied by his award, he could have gone in appeal to the Registrar under section 56 and a revision under section 64‑A of the said Act. No further challenge is contemplated in a Civil Court, either b way of a civil suit or much less in the execution proceedings. I, therefore, see no substance in this contention of the learned) counsel.

4. The second objection was that the sale can only be held for the amount originally mentioned fn the execution application, and It is not open to the judgment‑creditor to add anything to it by way of subsequent interest. This, it was argued by Mr. Fonseca, amounts to an amendment of the execution application which is not permitted. There is nothing in this objection, because in the execution application itself the decree‑holder has expressly asked for future interest in terms of the decree. Order XXI, rule 66, C. P. C. provides for the showing of the amount in the proclamation, for the recovery of which the sale is ordered. This would mean g the amount due at the time of the auction‑sale. Further Order XXI, rule 11 sub‑clause (g) enables the decree‑holder to apply in writing for the execution of his decree and claim the amount due with interest due upon the decree. A claim for the interest provided in the decree must be deemed to be a claim for interest until satisfaction, and once the execution application includes a prayer for subsequent interest it is purile to say that such a claim cannot be included when the property is put to sale. I, therefore, reject this contention also. No other point was pressed before me and for the reasons given above I dismiss the objection filed on behalf of the judgment‑debtor with costs. K. B. A. Objection dismissed.