' SHABBIR AHMED, J.---This matter has been referred to Full Bench in the following circumstances:--
2. The learned Bench, hearing the petitions, wherein the question of applicability of Article 182 of Limitation Act, to the recovery proceedings by Registrar or his appointee has been raised, involving the interpretation of section 59 of the Cooperative Societies Act, was of the view that the provisions of subsection (3) of section 59 were not brought to the notice of learned Division Bench of this Court in Yaqoob Suleman Mayet v. Deputy Registrar Cooperative Societies (1989 CLC 311), while making the observation that recovery proceeding under section 59(1)(h) of the Societies Act as arrears of land revenue is not subject to limitation. As a consequence thereof, and following the guide-line given by the Supreme Court in Multi Line Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), the learned Bench referred the matter to the Chief Justice for formation of larger Bench.
The facts connected with above petitions are: 1 Petition No,D-395/1989:- ' The petitioner No,2 obtained an award dated 30-11-1974 against the predecessor of the petitioner, whereby predecessor-in-interest/ petitioners were required to pay certain sums of money as due to the respondent No,2. Apparently about 14 years thereafter the respondent No,1 passed an order dated 9-7-1988 attaching the properties of the petitioner and thereafter by subsequent order dated 14-11-1988 directed auction thereof. The said order has been called in question by the petitioner.
2. Petition No,D-1486/2001 ' That Ali Ahmed Khan Talpur, predecessor in interest of the petitioners borrowed loan of Rs,4,00,000.00 from respondent No,
1. The respondent No,1 approached respondent No,2, who nominated respondent No,3 as nominee and who passed an award on 19-5-1955. The certificate was granted under section 59-1(b) of Societies Act for recovery of the awarded dues. In the mean time, the Co-operative Societies (Repayment of Loans) Ordinance (XXXIV) of 1960 was promulgated. Another Ordinance known as 'The Co-operative Societies Banks (Repayment of Loans) Ordinance XIV) of 1966 was promulgated on 27-4-1966, whereunder different modes of payment were prescribed. It is the case of the petitioner that the certificate was granted on 22-1- 1958 to Collector of Karachi, whereas the case was sent to him on 25-7-1987 without passing of extension of further time for execution and long expired, but in any case even making allowance for the past delay, the limitation period had expired on 24-7-1990 as provided under Article 182 of the First Schedule of the Limitation Act.
' The proceedings taken by respondents have been impugned, inter alia, on the ground of barred by limitation.
3. We have heard Messrs M.A. Iqbal Qadri and Rasheed Akhtar, Advocates for petitioners and Messrs Abdul Aziz Khan and Syed Amjad Hussain, Advocates for respondents.
4. Manifestly, the point involved requires the interpretation of section 59, which reads as follows:-- "59. (1) Money how recovered. Every order passed by 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 of under subsection (3) of section 54-A, every order passed in appeal, under section 56, every order passed by the Provincial Government in appeal against order under sections 50, 50-A, 54 or subsection (3) of section 54-A and every order passed under section 64-A shall, if not carried out, 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
(a) [be executed] according to the law and under 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 for 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.
[(2) Power 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 Sind Land Revenue Code, 1879, [or the relevant provision of any other law relating to the revenue 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 financing bank or liquidator; or
(b) any sum awarded by way of costs under sections 448 and 45; or
(c) damages assessed in sections 22A and 50A; or
(d) penalty provided for in sections 61 and 62; or
(e) sums due to the Crown under section 65, together with the interest, if any, due on such amount or sum and the costs 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, pr when passing any orders or any application made on him for such recovery, or to take some steps-in-aid of such recovery, to be a Civil Court for the purpose of Article 182 of the First Schedule to the Limitation Act, 1908 (IX of 1908)."
' It may be stated that subsections (2) and (3) were brought on statute book by Sindh Act (XXVI of 1950).
5. The provision of subsection (1) of section 59, gives two alternative remedies to the person in whose favor 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 complexion 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) apart 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).
7. Mr. M.A. Iqbal Qadir reiterated his contention raised by him before the learned Division Bench that the recovery proceedings by the Registrar or any person subordinate to him, empowered by the Registrar is subject to the Limitation Act and as such, the award could not be executed after the expiry of three years. This was also precisely the contention of Mr. Rasheed Akhtar, Advocate.
8. Messrs Abdul Aziz Khan and Syed Amjad Hussain, representing the respondents with vehemence canvassed before us that the recovery proceedings under the provisions of Land Revenue Act is not subject to the limitation and to support such contention, placed their reliance on (1) Yaqoob Suleman Mayet v._ Deputy Registrar Cooperative Societies (1989 CLC 311), (2) Bhimsen Hanmani and others v. The Urban Bank Muddebihal (AIR 1947 Bombay 370), (3) Muppanna Malkappa Humbi v. Shree Gajanan Urban Co. Op Bank Ltd. (AIR 1947 Bombay 375).
The learned Division Bench of this Court in Yaqoob Suleman Mayet (supra) by following the decision of Division Bench of Bombay High Court in Muppanna Malkappa Mumbai v Shree Gajanan Urban Co. Op Bank Ltd., (AIR 1947 Bombay 375), ruled as follows:--
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 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 a 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.
' In Bhimsen Hanmant and others v. Urban Bank, Muddebihal (AIR 1947 Bombay 370), a dispute having arisen between the bank and the appellant it was referred for decision to a nominee of the Registrar, and the award in question was passed by him on 21-9-1930. Under the award the debtors were directed to pay certain amount with further interest. A certificate under section 59(1)(a) was issued by the Registrar on 25-9-1930 and the Bank put the said award into execution by filing Darkhast No,196 of 1932 in the Court of Civil Judge on 19-2-1932, it was dismissed for want of prosecution on 11-9-1933. Thereafter, the second Darkhast was filed by the Bank (No,955 of 1934) in the same Court on 18-9-1934. The appellant resisted the Bank's claim to recover the amount in question mainly on the ground that the Darkhast filed by the Bank was barred by limitation. It was urged that the Darkhast by which an award made under section 54, Societies Act, is sought to be executed is governed by Article 181 and not by Article 182. Both the Courts below rejected the appellant's contention by holding that the proper Article to apply to the present execution proceedings is Article 182(5). It was also held that the previous Darkhast was a step-in-aid of execution and that the present Darkhast having been filed within three the date of the final order passed in the previous Darkhast, the decree-holder's claim to execute the award was in time. The question for decision by High Court was that which of the two Articles 181 and 182 of the Limitation Act applies to an application made to execute an award under section 59(1)(a) of the Societies Act. After considering the various decisions on the subject, the Division Bench of the Bombay High Court concluded that award sought to be executed under section 59(1)(a) must, for the purpose of execution, be treated to be a decree of a Civil Court within the meaning of Article 182 of the Limitation Act.
' While highlighting the object of section 59, the learned Division Bench observed that the Legislature seems to have intended that the Societies in whose favor awards are made under section 54, Societies Act, should be entitled to execute their awards either with the assistance of Civil Courts or at the hands of the Collector who is authorized to recover the dues in question as arrears of land revenue. The certificate which the Registrar has to grant in either case is not subject to any limitation. Prima facie an application made under section 59(1)(b) for assistance of the Collector to execute the award is not subject to any limitation.
' In Muppanna Malkappa Humbi v. Shree Gajanan Urban Co. Op. Bank, Ltd. (AIR 1947 Bombay 375), the facts were that Shri Gajanan Urban Co-operative Bank, limited, obtained an award against borrower under section 54 of the Societies Act, 1925. The Bank obtained a certificate from the Registrar to execute the award in the Court of the subordinate Judge and filed Darkhast No,104 of 1930, which was disposed of on 10th April, 1931. Second Darkhast No,1375 of 1932, was filed, which was disposed of on 1 1 th July, 1933. The Bank then made a third attempt by instituting a third Darkhast No,39 of 1933, and the same was disposed of on 10th April, 1934. Then it made a fourth attempt by instituting Darkhast No,193 of 1937 on 18th March, 1937. The Executing Court held that Article 181 of Limitation Act, applied to such a Darkhast, it was therefore, barred by limitation. The Bank preferred the Civil Appeal No,253 of 1937 against the decision in the District Court. When the appeal came up for hearing, a purshis was filed by which the Bank agreed that the appeal may be dismissed provided the question of limitation was kept open. The judgment-debtors also agreed to this proposal, and thereupon the appeal was dismissed. After these proceedings, the Bank obtained from the Registrar a certificate under section 59(1)(b) of Bombay Cooperative Societies Act, and applied to the Collector for recovery of their dues as arrears of land revenue. Then the plaintiffs filed suit for an injunction against the bank restraining it from executing the award through the Revenue Authorities after getting a declaration that the said award was time-barred and that the Bank was not entitled to recover anything from the plaintiffs on the strength of that award. The contention of the plaintiffs was that the Registrar had no authority to grant a certificate in such cages and the Bank had no right to execute a time-barred award in the Revenue Court. The trial Judge held that the Civil Court had jurisdiction to question the authority of the Registrar to issue a certificate under section 59(1)(b) even after the execution of the award by the Civil Court.
An injunction restraining the Bank from executing the award through the intervention of the Revenue Authorities was issued. In appeal preferred by the Bank, it was observed that the trial Court was wrong in holding the view that the decree was held to be barred by limitation. It was pointed out that in appeal by the Bank to the District Court the question of limitation had been specifically kept open and it was also opined that there was nothing in the Bombay Cooperative Societies Act of 1925 to prevent the Registrar from issuing a fresh certificate under section 59(1)(b) so as to enable the party concerned to go before the Collector and to recover the amounts due to it as if they were arrears of land revenue. It was also pointed out that the mere fact that the Bank had chosen to pursue its remedy in the subordinate Judge's Court did not preclude it from having recourse to the alternative remedy which is provided under section 59(1)(b) of the Act. In appeal, the High Court observed that:-- 'Except in cases governed by section 28, Limitation Act, limitation merely bars the remedy but does not extinguish the title. Hence, merely because the remedy of a party on an award under S.59(1)(a), Bombay Co-operative Societies Act, is barred by limitation, the award does not become infructuous and if it is open to the party, under the alternative remedy to apply to the Collector under S.59(1)(b), that remedy would still be available.'
' It was further observed that:-- 'The word 'or' occurring between cls. (a) and (b) of S.59(1) gives to the person in whose favor an award under S.54 has been passed, two alternative remedies for the execution of the award, but they are not inconsistent rights. A resort to the remedy under cl.(a) without obtaining any satisfaction of the award decree, does not preclude such a person from resorting to the remedy under cl.(b).'
' On above observations, Mr. Abdul Aziz Khan has vehemently contended that neither the certificate is subject to the limitation, nor the alternate remedy provided under section 59(1)(b), assistance of the Collector to execute the award, is subject to any limitation.
9. We are of the view that by insertion of subsections (2) and (3), as observed earlier, one more forum has been provided to the Bank/holder of an award to get it executed in addition to fora of Collector, through Registrar or any person empowered by him in that behalf. While exercising such power the Registrar or his appointee has to adapt the procedure under Land Revenue Act and rule made thereunder but said fora has been equated with "Civil Court" for the purpose of Article 182 to the Limitation Act. Therefore, the recovery proceedings before said fora would be subject to the limitation in terms of Article 182. We are of the view that subsection (3) not only controls the recovery proceedings under subsection (2), but any application made to him for recovery or to take some steps-in-aid of such recovery as well.
' The phrase "any application to take some steps-in-aid of such recovery" used in subsection (3) is referable to an application, to take some steps to advance a recovery proceeding. The words "steps-inaid of recovery" appear to be intended to cover an application which is not an initial application for recovery but an application to take some steps to advance recovery. That may be an application for the issuance of certificate. In absence thereof the recovery proceedings cannot be taken. Therefore, we are of the view that provisions of subsections (2) and (3) were not brought to the notice of the learned Bench in Yaqoob Suleman Mayet v. Deputy Registrar Co-operative Societies (1989 CLC 311). The matter be placed before the learned Bench for disposal of the petitions on merits.