SAMAN RAFAT IMTIAZ, J. Through the instant Writ Petition the Petitioner [I.B. Co-operative Housing Society] has assailed the Order dated 12.01.2023 ("Impugned Order I") passed by the learned Additional District Judge-II, East-Islamabad whereby Appeal filed by the Petitioner was dismissed against the Order dated 09.12.2022 ("Impugned Order II") passed by the learned Civil Judge 1st Class, East-Islamabad dismissing the Objection Petition filed by the Petitioner,
2. The brief facts as per the memorandum of Petition are that Respondent No. 2 [Faraz Fazal Sheikh] filed a Petition alleging therein that Farm House No. 274, measuring 100x216, situated at main Pine Avenue, Block B, Gulberg Islamabad ("Farm House") was purchased by him from the open market in the year 2019. In February, 2020 Respondent No, 2 approached the Petitioner but possession of the Farm House was not handed over to him. The Respondent No. 2 filed a Petition under Section 54 of the Cooperative Societies Act, 1925 ("Co-operative Societies Act") pursuant to which arbitration proceedings were conducted between the parties by the Registrar Cooperative Societies, who passed the order dated 21.09.2021.
3. Aggrieved of the said Order, the Petitioner filed an Appeal under Section 56 of the Co-operative Societies Act which was dismissed for non-prosecution vide the Order dated 27.01.2022, An Application for restoration of the Appeal was filed but it too was dismissed. A Revision Petition under Section 64-A of the Cooperative Societies Act is pending before the Chief Commissioner, Islamabad Capital Territory.
4. Meanwhile, the Respondent No. 2 instituted execution proceedings before the Civil Court, The Petitioner filed an Objection Petition, but the Executing Court dismissed the Objection Petition vide the Impugned Order II, Whereas, the Appeal filed by the Petitioner against the Impugned Order II also met the same fate vide the Impugned Order I. Hence, this Petition.
5. The learned counsel for the Petitioner has taken the Court through the provisions of Section 59 of the Cooperative Societies Act. He submits that subsection (1)(a) of Section 59 of the Cooperative Societies Act has been misinterpreted by way of the Impugned Orders by holding that it implies that an order passed by the Registrar is to be executed through a Civil Court. Whereas, the said provision only states that an order passed inter alia by a Registrar under Section 54A shall be deemed to be a decree of a Civil Court and shall be executed in the same manner which according to the learned counsel for the Petitioner implies that the manner of execution to be carried out by the Registrar shall be the same as that of a Civil Court. He argued that nowhere does the law provide or imply that execution shall be carried out by the Civil Court. He has also drawn attention of the Court to subsection (3) of Section 59 ibid which provides that a Registrar or a person empowered by him shall be deemed to be a Civil Court for certain purposes. He further submits that similar provisions are provided in the Family Courts Act as well as the Islamabad Rent Restriction Ordinance, 2001 and yet it is settled law that the Family Court and the Rent Controller have the power to execute their own decrees. Lastly he submitted that the matter has been put to rest by the promulgation of the Islamabad Cooperative Societies Rules, 2018 ("Rules, 2018") which include a chapter titled Execution of Decision, Award or Order by the Registrar and that there is no template of a certificate in the said rules anymore. He has relied upon Government Employees Cooperative Housing Society Limited and others v. The Secretary, Cooperative Societies and others 2015 MLD 280, S.M. Tariq Khawaja v. Registrar Cooperative Societies, Islamabad and 3 others 2020 CLC 653, Messrs Dehli Co-Operative Housing Society through Chairman v. Province of Sindh through Secretary, Co-operation, Karachi and 5 others 2017 MLD 695, Mst. Saima Tabbasam v. Syed Sher Shah and 3 others 2016 MLD 1430, Muhammad Rafique v. Farida Khan and others 2016 CLC 1451, Dad Rehman and another v. Mst Shakeela 2003 YLR 141 and Mehrunnisa and others v. Assistant Registrar Cooperative Societies Recoveries) 2003 MLD 1927.
6. The learned counsel for Respondent No. 2 has vehemently opposed the Petition on the ground that there are concurrent findings against the Petitioner and the Impugned Orders are well reasoned and no illegality has been pointed out by the Petitioner. He has argued that the Executing Court is competent to adjudicate upon the matter and at best the Registrar has concurrent jurisdiction to proceed with execution petitions. He pointed out vehemently that the Certificate granted by the Registrar as required under Section 59(1)(a) was in accordance with the template provided in the Cooperative Societies Rules, 1927 ("Rules, 1927") which itself orders for execution through competent Court. In support of his contentions the learned counsel has relied upon S.M.
Tariq Khawaja v. Registrar Cooperative Societies, Islamabad and 3 others 2020 CLC 653, Federal Employees Cooperative Housing Society v. Director General, Federal Investigation Agency, Islamabad and others 2019 PCr.LJ, 594, Shahnaz Parveen through Attorney v. The Additional District Judge-III, Karachi-East and 3 others 201 MLD 1008, Zia Ullah Shah v. Muhammad Khaqan and 6 others 2018 MLD 1860, Shahnaz Parveen through Messrs Dehli Co-operative Housing Society through Chairman v. Province of Sindh through Secretary, Co-Operation, Karachi and 5 others 2017 MLD 695 and Sheikh Haidar v. Registrar Cooperative Societies, Karachi and others PLD 1966 (W.P.) Karachi 177.
7. I have heard the learned counsel for the parties and have also perused the record.
8. The present controversy arises from Section 59 of the Co-operative Societies Act and particularly from the use of the words "deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such court" in clause (a) of subsection (1) of Section 59 ibid. Before proceeding further it is expedient to reproduce the said provisions for purposes of our discussion:
59. Money how recovered.-- (1)[Every order passed by a liquidator under section 50, or by the Registrar under section 50-A, or by the Registrar or his nominee or arbitrators on disputes referred to him or them under clause (g) of section 50 or under section 54 or under subsection
(3) of section 54-A, every order passed in appeal under section 65 every order passed by the Provincial Government in appeal against orders under section 50, 50-A, 54 or sub-section(3) of section 54-A and every order passed under section 64-A shall, if not carried out. a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such court; or] b) [be executed] according to the law for the time beim, in force for the recovery of arrears of land revenue; provided that any application for recovery of the amount in such a manner shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or by an officer subordinate to the Registrar to whom the said power has been delegated by the Registrar.
(2) Powers of Registrar to recover certain sums by attachment and sale of property.- The Registrar or any person subordinate to him empowered by the Registrar in this behalf may, subject to such rules as may be prescribed by the Provincial Government and without prejudice to any other mode of recovery provided by or under this Act, recover by exercising powers of the Collector under the [Sindh] Land Revenue Code, 1879 (Sindh V of 1879) [or the relevant provisions of any other law relating to land revenue in force in the area], and the Rules thereunder- a. any amount due under a decree or order of a Civil Court, a decision or an award of the Registrar, obtained by a registered society including a financing bank or liquidator; or b. any sum awarded by way of costs under sections 44-B and 45; Or c. damages assessed in sections 22-A and 50-A; or d. penalty provided for in sections 61 and 62; or e. sums due to [Government] under section 65, together with the interest, if any, due on such amount or sum and the cost of process, by the attachment and sale or by the sale without attachment of property of the person against whom such decree, decision, award or order has been obtained or passed.
(3) Registrar or person empowered by him to be a Civil Court for certain purposes.- The Registrar or any person empowered by him in that behalf shall be deemed when exercising any powers under this Act for the recovery of any amount by the attachment and sale or by the sale without attachment of any property, or when passing any orders on any- application made to him for such recovery or to take some step-in-aid of such recovery to be a Civil Court for the purposes of Article 182 of the First Schedule to the Limitation Act, 1908 (IX of 1908).] [Emphasis added].
9. In order to bolster his argument in favour of the interpretation sought by the Petitioner, the learned counsel argued that the deeming clause found in clause (a) of subsection (1) of Section 59 in the Cooperative Societies Act is similar to the deeming clauses contained in the Family Courts Act, 1964 ("Family Courts Act") and the Islamabad Rent Restriction Ordinance, 2001 ("Islamabad Rent Ordinance") where under the Family Court and the Rent Controller undisputedly have the power to execute their own decrees. He highlighted the following provisions in particular: Family Courts Act, 1964
25. Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890.- A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act. [Emphasis added].
Islamabad Rent Restriction Ordinance, 2001
23. Execution of orders. Every order made under section 14, section 17, section 18 and every order passed in appeal under section 21, shall be executed by the Controller as if it were a decree of a Civil Court. The provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908) shall, so far as may be, apply to the execution orders made under this Ordinance.
[Emphasis added].
10. A careful examination of the said provisions of the Family Courts Act and the Islamabad Rent Ordinance in comparison with clause (a) of subsection (1) of Section 59 of the Cooperative Societies Act highlights various significant differences in phraseology. Pursuant to the subject provision of the Cooperative Societies Act it is an order passed inter alia by the Registrar under the stipulated provisions that shall be deemed to be a decree of the Civil Court and which shall be executed in the same manner as a decree of such court. Thus the subject of the said provision is the order passed by the Registrar, which has been accorded the status of a decree passed by a Civil Court and as such ordains for it to be executed in the same manner as a decree of the Civil Court. The provision does not state that the Registrar shall be deemed to be a Civil Court.
II. In stark contrast, Section 25 of the Family Courts Act specifically stipulates that a Family Court shall be deemed to be a District Court. Furthermore, subsection (1) of Section 13 ibid authorizes the Family Court to pass decree whereas subsection (4) provides that a decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may direct. In other words, both Family Court and Civil Court have been conferred concurrent jurisdiction to execute decrees passed by the Family Court in clear, explicit, and unambiguous language.
12. Similarly, Section 23 of the Islamabad Rent Ordinance provides that an order made by the Rent Controller under specific sections shall be executed by the Rent Controller as if it were a decree of a Civil Court. Thus there is no ambiguity that the Rent Controller is empowered to execute the orders passed under the stipulated provisions of the Islamabad Rent Ordinance.
13. The Petitioner would like this Court to infer the Registrar's power to execute its orders under Section 59 of the Cooperative Societies Act simply because such orders have been given the status of decree passed by the Civil Court which are to be executed in the same manner as a decree of such court. However, there is a marked difference between the Registrar being deemed a Civil Court and the order it passes being deemed a decree of the Civil Court to be executed in the same manner as decree of such court. The comparison with the Other provisions of laws makes it clear and apparent that where the Legislature intends to confer the power of execution upon the forum passing the order/decree to be executed, it does so in clear and explicit language, which is conspicuously missing in clause (a) of subsection (1) of Section 59 of the Cooperative Societies Act.
14. This distinction is in fact apparent in subsection (1) of Section 59 of the Cooperative Societies Act itself. Clause (b) of subsection (1) of Section 59 of the Cooperative Societies Act provides an alternate mode of execution of the same orders which is by making an application to the Collector in the stipulated manner according to the law for the time being in force for the recovery of arrears of land revenue. The difference in language used in the two clauses of the same provision cannot be ignored. While one simply accords the status of decree to an order the other explicitly provides that such order may be executed by making an application to the Collector under the stipulated law. Had the Legislature intended to empower the Registrar to execute its orders, clause (a) of subsection (1) of Section 59 ibid would be couched in similar language as used in clause (b) thereof.
15. If the contention of the Petitioner is accepted then the liquidator who passes an order under Section 50 of the 'Cooperative Societies Act would also be deemed to be a Civil Court as clause (a) of subsection (I) of Section 59 of the Cooperative Societies Act also envisages orders passed by the liquidator under Section 50 thereof to be deemed to be a decree passed by the Civil Court in addition to the Registrar's orders under the stipulated provisions.
16. Section 59-A of the' Cooperative Societies Act provides further clarity. The said section provides a remedy for a situation in which a property sought to be sold in execution of an order cannot be sold for the stipulated reasons. The point to be noted from this provision is that it is the Court or the Collector who may give the remedial direction in such situation and not the Registrar. Clearly the scheme of the law is for the Civil Court to execute the orders listed in subsection (1) of Section 59 of the Co-operative Societies Act and which is why clause (a) thereof deems such orders to be decrees passed by the Civil Court which they otherwise are not.
17. The learned counsel for the Petitioner had also relied upon subsection (3) of Section 59 of the Cooperative Societies Act to argue that the Registrar is deemed to be a Civil Court thereunder.
However, the said provision deems the Registrar to be a Civil Court only for certain purposes. In order to understand the scope of subsection (3) of Section 59, it is necessary to understand the various modes of execution provided in Section 59. There are two alternate methods provided vide clauses (a) and (b) under subsection (1) of Section 59 for the recovery of money under any order passed as described in subsection (1) if not carried out. Clause (b) provides that such order may be executed in accordance with the law for recovery of arrears of land revenue upon application made to the Collector along with the requisite certificate.
18. Subsection (2) of Section 59 ibid provides a third mode which empowers the Registrar to recover certain sums by attachment and sale of property by exercising the powers of the Collector under the relevant provisions of law relating to land revenue and the rules made thereunder in this regard. Whereas, subsection (3) provides that the Registrar shall be deemed to be a Civil Court for the purposes of Article 182 of the First Schedule of the Limitation Act, 1908 ("Limitation Act") when exercising any powers under the Cooperative Societies Act for the recovery of any amount.
19. To sum-up, subsection (1) of Section 59 provides that an order passed by the liquidator or the Registrar under the stipulated provisions of the Act, if not carried out, shall on a certificate signed by the Registrar or liquidator be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such court or alternatively be executed by the Collector in accordance with the law pertaining to the recovery of arrears of land revenue subject to issuance of the requisite certificate. Subsection (2) of Section 59 empowers the Registrar to exercise powers of the Collector under the relevant law relating to land revenue to recover by, sale and attachment of property such sums as stipulated thereunder. Whereas, subsection (3) provides the limitation period applicable upon the Registrar when inter cilia exercising the powers under the Cooperative Societies Act for the recovery of any amount by sale and/or attachment of property. The limitation period is as provided for the execution of a decree or order of any Civil Court as stipulated under Article 182 of the Limitation Act and for such purpose subsection (3) of Section 59 provides that the Registrar shall be deemed to be a Civil Court. The provision of Section 59 of the Cooperative Societies Act is absolutely devoid of any language whereby the Registrar is to be deemed a Civil Court for any purposes other than limitation where the Registrar is exercising any power under the Cooperative Societies Act for recovery of any amount.
20. I am fortified in my view by the judgment rendered by the Sindh High Court at Karachi in the case of Mehrunnisa and others v. Assistant Registrar Cooperative Societies (Recoveries) 2003 MLD 1927, the relevant portion of which is reproduced herein below:
5. The provision of subsection (1) of section 59, gives two alternative remedies to the person in whose favour an award has been given. The person could, on certificate signed by the Registrar, execute it in the same manner as a decree of a Civil Court; or in alternative he could apply for the recovery of amounts due to him under the rules for the time being in force for the recovery of arrears of land revenue, provided an application is accompanied by a certificate signed by Registrar or the Assistant Registrar to whom the said power has been delegated by Registrar: The provision of subsection 59(1)(a) and (b) were interpreted in case of (i) Bhimsen Hannant and others v. The Urban Bank, Muddebihal (AIR 1947 Bombay 370), (ii) Muppanna Malkappa Humbi v. Shree Gajanan Urban Co. Op. Bank Ltd. (AIR 1947 Bombay 375) and (iii) Yaqoob Suleman Mayet v. Deputy Registrar Cooperative Societies (1989 CLC 311), which have been referred.
6. The completion of section 59, pertaining to the recovery of money, has been drastically and dynamically changed due to insertion of subsections (2) and (3). Under subsection (2) a part from the two forums available under subsection (1) a third forum has been provided by enabling the Registrar or his subordinate to exercise powers of Collector under the Land Revenue Act. Under subsection (3) such authority while exercising any power under the Act for recovery by attachment and sale or by sale without attachment, was to be deemed to be a 'Civil Court' for the purpose of Article 182 of First Schedule to the Limitation Act in terms of subsection (3)." [Emphasis added].
In the instant case, however, Respondent No. 2 has not made any application to the Collector pursuant to clause (b) of subsection (1) of Section 59 of the Cooperative Societies Act or to the Registrar under subsection (2) of Section 59 ibid for recovery in accordance with law pertaining to recovery of arrears of land revenue and as such subsection (3) thereof does not come into play.
21. The Respondent No. 2 relied upon Shahnaz Parveen v. Additional District Judge-M, Karachi- East 2019 MLD 1008, wherein Sindh High Court at Karachi upheld an order passed by a Senior Civil Judge in exercise of revisional jurisdiction arising from an execution application filed in respect of an award passed under the Cooperative Societies Act. The learned counsel for the Petitioner submitted that such ruling is not applicable in Islamabad Capital Territory as the Province of Sindh is still following the Rules, 1927 where-under the Registrar and Civil Court enjoy concurrent jurisdiction whereas the Rules, 2018 have been promulgated in the Islamabad Capital Territory which clearly provide the mechanism for execution by the Registrar itself which according to the learned counsel for the Petitioner clarifies that in Islamabad Capital Territory it is the Registrar who has exclusive powers to execute orders passed by the Registrar or the liquidator as listed in subsection (1) of Section 59 ibid. However, sub-rule (2) of Rule 40 expressly states that it is the procedure to be adopted where a decree holder desires to have the decree executed under the provisions of sub-section (3) of Section 59. I have already concluded herein above that subsection
(3) of Section 59 is only relevant where the Registrar is exercising powers under the Cooperative Societies Act for the recovery of any amount by sale and/or attachment of property, etc.
22. The learned counsel for the Petitioner relied upon Government Employees Cooperative Housing Society Limited and others v. The Secretary, Cooperative Societies and others, 2015 MLD 280 wherein the Honorable Lahore High Court has held that Section 59 does not suggest that decree will necessarily be executed by the Civil Court and not by any the court or the authority who has passed the order. However, this ruling is irrelevant for purposes of Islamabad Capital Territory as the Cooperative Societies Act was amended in the Province of Punjab vide the Cooperative Societies (Amendment) Act, 2006 to inter alia include subsection (5) to Section 59 of the Cooperative Societies Act which is reproduced herein below: "The Registrar or any other officer subordinate to him, duly authorized by the Government to execute the orders or the awards, shall be deemed to be a civil court and shall have the powers vested in an executing court under the Civil Procedure Code, 1908 (Act V of 1908)." [Emphasis added].
23. The addition by way of the said Amendment in Punjab further clarifies that the Registrar cannot be deemed to be a Civil Court under clause (a) of subsection (1) of Section 59 of the Cooperative Societies Act as otherwise there would have been no need for the addition of sub-section (5) thereto in Punjab. No such amendment has been made to the Cooperative Societies Act as applicable in the ICT.
24. The learned counsel for the Petitioner also relied upon S.M. Tariq Khawaja v. Registrar Cooperative Societies, Islamabad and 3 others 2020 CLC 653 whereby this Court allowed a Writ petition and directed the Registrar Cooperative Societies to, inter alia, execute its orders. However, perusal of the said Judgment shows that the question whether the Registrar was empowered to implement its order in execution was not at issue between the parties before this Court in such case. This Court simply took note of the fact that the Registrar had delayed execution despite pendency of proceedings before it for a fairly long time particularly when this Court in another writ petition had already directed the National Police Foundation Cooperative Housing Society to implement the relevant order.
25. Last but not least, it is noted that the Petitioner did not argue that the Registrar is deemed to be the Civil Court under clause (a) of subsection (1) of Section 59 of the Cooperative Societies Act Petitioner before the learned Civil Judge 1st Class,. East-Islamabad in its Objection Petition nor before the Appellate Court on appeal. Perusal of the Petitioner's Objection Petition and its memo of Appeal shows That the ground raised therein was that under section 38 of Civil Procedure Code, 1908, only a court which passes the order can execute it. The Impugned Order II records that the ground argued before the Civil Court was that execution proceedings of the order passed under Section 54 of the Cooperative Societies Act are to be conducted by the Collector pursuant to Section 59(1)(b) ibid. Both the learned Courts correctly concluded that subsection (1) of Section 59 provides two modes of execution and as such the proceedings before the Civil Court were rightly instituted under the mode provided pursuant to clause (a) of subsection (1) of Section 59 thereof.
26. For all the foregoing, reasons, the Petitioner has failed to convince this Court that there is any illegality in the Impugned Orders passed by the Executing Court as well as Appellate Court, which warrant interference by this Court in exercise of Constitutional jurisdiction. Resultantly, the writ stands dismissed.