' AJMAL MIAN,J.--The petitioner through this petition has prayed for the following reliefs: "b. The petitioner, therefore, prays that this Honourable Court will be pleased : -
(a) to declare that the award dated 15-7-1965 in A.B.No.167 of 1963 and all the subsequent orders therein, including the notice of recovery and the order of respondent No.1, dated 12-12-1973 are illegal, not in accordance with law, without jurisdiction and unenforcible in law;
(b) to restrain the respondents Nos. 1 and 2 and all their subordinates from taking any action for the enforcement of the award, dated 15-7-1965 in A.B.No.167 of 1973 and all subsequent orders made therein including the order of respondent No.1 dated 12-12-73 and or in any way affecting the person and property of the petitioner the recovery of the claim therein;
(c) for such further and other relief as the Honourable Court may deem fit with costs.
2. The brief facts leading to the filing of the above petition are that the petitioner was allotted by way of transfer plot of land, bearing No.137-B, situated in respondent No.2 Society. After that respondent No.2 executed a sub-lease dated 14-3-1959 in favour of the petitioner after he had put up construction on the plot. It seems that the, petitioner entered into agreement of sale for the transfer of the plot and the construction thereon on 8-8-1961 for the lump sum price of Rs.95,000 with respondent No.3. In pursuance to above agreement petitioner executed and got registered a sale-deed on 30-11-1961 in favour of respondent No.3. It further seems that respondent No.2 objected to the above transfer on the ground that the same was done without permission of the Society. After that respondent No.2 invoked arbitration under the Co-operative Societies Act, 1925 (hereinafter referred to as the Act) by filing claim under section 54 of the above Act for forfeiture, possession and means profits of Rs.100 per month before the Registrar Co-operative Societies.
Petitioner in response to the above claim objected the proceedings on 12-7-1963 and raised the plea that the claim if any was maintainable against respondent No.3, the purchaser and not against the petitioner. However, the Registrar Co-operative Societies Karachi on 23-4-1965 referred the dispute to his nominee Mr.Israr-un-Nabi being Arbitration A.B. No.167 of 1963. The petitioner and respondent No.2 appointed their nominees. The Registrar's nominee and respondent No.2's nominee gave an award dated 15-7-1965 allowing respondent No.2's above claim. The petitioner being aggrieved by the above award filed appeal under section 56 of the Co-operative Societies Act which was heard by respondent No.1 who by his order dated 28-2-1967 maintained the award and held that respondent No.3 was not a necessary party. The petitioner being aggrieved by the above award and the order of respondent No.1 filed a revision before the Secretary, Co-operation Department of the Government of West Pakistan, who by his order dated 8-9-1967 dismissed the same and observed that the respondent No.2 might consider the application of respondent No. 3 for membership after obtaining penal compensation for past irregularity. It also seems that the petitioner did not file any proceeding against the above final order dated 8-9-1967. Respondent No.2 filed execution proceedings on 31-3-1972 before the Deputy Registrar Co-operative Societies, who issued a notice on 11-10-1973 to the petitioner calling upon him to pay a sum of Rs.25,946.02 plus Rs.71.48 being the recovery charges. Thereupon, the petitioner filed an application (Annexure "H" to the petition) playing therein, that the above notice be cancelled and the aforesaid order dated 8-9-1967 passed by the Secretary, Co-operation Department of the Government of West Pakistan be implemented. After that the Deputy Registrar respondent No.1 passed the order dated 12-12-1973 bifurcating the petitioner's and respondent No.3's liability by providing payment of Rs.18,472 by the petitioner and -Rs.7,410.80 by respondent No.3. It seems that after that the petitioner filed the present petition without complying with the above order and has prayed for the abovequoted reliefs.
3. In support of the above petition Mr.Iqbal Kazi learned counsel for the petitioner has urged the following points:
(i) That under clause 4(2) of the sub-lease the petitioner was entitled to a three calendar months notice for the forfeiture of the sub lease which was not given by respondent No.2 to the petitioner and therefore, the forfeiture of the sub-lease could not have been allowed by the Arbitration Tribunal, Appellate Authority and the Revisional Authority.
(ii) That since the petitioner had raised construction, he was entitled to the payment of the value of the structure in terms of clause 3(2) of the sub-lease.
(iii) That since the sub-lease for the plot was for construction of a house, it was protected under the provisions of late West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, no ejectment could have been ordered otherwise than in terms of the Ordinance.
(iv) Respondent No.3 being the purchaser of the property and as he was not a member of the respondent No.2, there could not have been any valid arbitration proceedings.
(v) That no 'execution proceedings of the award could have been filed after the expiry of three years form the date of the final order and since in the instant case the proceedings were filed after the expiry of nearly six years, the same were not competent.
4. On the other hand Mr.Mustafa Lakhani, learned counsel for respondent No.2 has urged as follows:
(i) That since the award had acquired the finality after passing of the revisional order by the Secretary, Co-operation Department of the Government of West Pakistan on 8-9-1967 and as the above order was not challenged, it is not open to the petitioner to challenge the same after the expiry of more than six years as the present petition was filed on 6-2-1974.
(ii) That even before respondent No.1 in response to the execution application the petitioner filed the aforesaid application for the' implementation of the above revisional order dated. 8-9-1967 and had not raised any objection as to the legality of the award or the above final revisional order, it is not open to the petitioner to contest the validity of the award in these proceedings.
(iii) That since respondent No. 2 was recovering the amount of award as a land revenue in terms of section 59(1)(b) of the Co-operative Societies Act, 1923 and not as a decree under clause (a) of the above section, there was no question of limitation.
5. Mr.Abbas Zia learned counsel for respondent No.3 has contended that respondent No.3 had nothing to do with the arbitration proceedings as he was not a party and that there was no order passed by consent of respondent No.3 by respondent No.1.
6. We are inclined to hold that after the passing of the revisional order dated 8-9-1967 by the Secretary, Co-operation Department of th Government of West Pakistan, the above award dated 15-7-1965 had acquired the finality as the petitioner had not challenged the sam through any other legal proceedings before the filing of the abov petition on 6-2-1974 i.e. after the expiry of nearly about 64 years. We have also noticed that the petitioner in his application before responden No.1 in response to the aforesaid execution notice dated 11-10-1973 sought the implementation of the observation of the Secretary, Co operation Department of the Government of West Pakistan and had not impugned the award as such or the appellate order. In this view o the matter, the contention of Mr.Mustafa Lakhani that the petitioner cannot be allowed to agitate the question of validity of the award in this writ petition after the expiry of about 64 years seems to have force, and therefore, it is not necessary to examine the merits o Mr.lqbal Kazi's contentions pertaining to the validity of the award. Furthermore, the., questions whether the petitioner is entitled to retain possession till the payment of the compensation for the structure in terms of the sub-lease, and whether the petitioner was protected by the provision of the late West Pakistan Urban Rent Restriction Ordinance, 1959 are not pertinent for the purpose of examining the legality of the execution proceedings as the execution has been filed for the recovery of the amount in terms of section 59(1)(b) of the Co-operative Societies Act and not for the possession of the premises as a decree of the Court.
7. As regards the contention that there could not have been, any forfeiture of the sub-lease without three months prior notice in terms of clause 4(2) of the sub-lease, it may be observed that no such plea was raised either before the Arbitration Tribunal or before the Appellate Authority or before the Revisional Authority. This was a question of fact which should have been raised at the earliest opportunity before the Arbitration Tribunal and therefore, the same cannot be raised in the writ petition.
' Reverting to Mr.Iqbal Kazi's contention that respondent No.3 was a necessary party to the arbitration proceedings and that as she was not a member, in her absence there could not have been any valid arbitration proceedings, it will suffice to observe that respondent No. 3 had no privity with respondent No. 2, and therefore, respondent No. 2 was not obliged to make a stranger a party to the arbitration proceedings. Even otherwise, this contention also relate to the validity of the award which question cannot be agitated for the aforesaid reason.
8. The only question that requires examination is, as to whether respondent No.2 could have filed execution proceedings on 31-3-1972 as admittedly the award had acquired the finality after the passing of the above revisional order dated 8-9-1967. In order to appreciate the respective contention of the learned counsel for the parties, it may be advantageous to reproduce section 59(1) of the Co-operative Societies Act, 1925 which reads as follows: "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 sections 50, 50-A, 54 or subsection (3) of section 54-A 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 decree of such Court; or
(b) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue, provided that any application for the recovery in such manner of any such sum shall be made to the Collector and shall be accompanied by a certificate signed by the Registrar or by an Assistant Registrar to whom the said power has been delegated by the Registrar.
9. It may be noticed that under sub-clause (a) of subsection (1) of section 59 orders referred to in subsection (1), on a certificate signed by the Registrar or a liquidator, can be executed in the same manner as a decree of the Court as the same is to be deemed to be a decree of the civil Court, whereas under subclause (b) the recovery of any amount can be made as the arrears of land revenue. In other words, if an order passed under section 54 and other sections referred to under subsection (1) of the above section 59 is in terms of money, the same can be executed either as a decree of the Court by virtue of clause (a) of subsection (1) or it can also be recovered as arrears of land revenue inter alia by virtue of clause (b) of subsection (1) of the above section 59.
10. Mr.lqbal Kazi has referred to the case of Re:Belvedere Jute Mills Ltd., Chaitram Sagormull v.
Hardwarimull & Company AIR 1927 Cal. 853 and the case of Anjuman Dehi v. Kehar Singh AIR 1936 Lah. 901 in support of his contention that an award cannot be executed after the expiry of three years period as it is to be executed as a decree. In the former case a Division Bench of the Calcutta High Court held that an award filed in a Court is enforceable as if it were a decree of that Court and, therefore, shall for the purposes of limitation be governed by Article 182 or 183 according to as it is filed in a Chartered High Court or not, whereas in the latter case a Division Bench of the Lahore High Court held that second reference to the arbitration was not competent if the dispute was covered by a previous award between the parties which could not be enforced on account of the expiry of the limitation period.
' On the other hand Mi.Mustafa Lakhani had referred to the case of Muppanna Malkappa Humbi v.
Shree Gajanan Urban Co-operative, Bank Ltd. AIR 1947 Bom. 375, in which it was held by a Division Bench of the Bombay High Court that except in cases governed by section 28 of the Arbitration Act limitation merely bars the remedy but it does not extinguish the title. It was further held that merely because the remedy of a party of an award under section 59(1)(a) of the Bombay Co-operative Societies Act is barred by limitation, the award does not become infructuous and if it is open to the party, to avail of alternative remedy namely under section 59(1)(b) of the Act, that remedy would still be available.
11. As observed by us hereinabove that under subsection (1) of section 59 of the Act there are two alternate remedies provided in respect of an order pertaining to the recovery of money, namely, either it can be executed by virtue of clause (a) of subsection (1) as a decree of the Civil Court or the same can be recovered as the arrears of land revenue by virtue of clause (b) of subsection (1) of section 59 and, therefore, 'if the amount is to be recovered as arrears of land revenue the question of limitation would not arise. We are inclined to agree with the above judgment of the Bombay High Court. In the instant case, as pointed out hereinabove the execution has been sought only for the recovery of the amount as the arrears of land revenue and not the execution of the other part of the order pertaining to the recovery of the possession and, therefore, the question of limitation could not arise. We may also observe that if respondent No.2 would have sought the execution of the award/order as the decree of the Court under clause (a) of subsection (1) of section 59 of the Act the same would have been time-barred as limitation period would have been applicable.