003-NLR-NLR-V-63-KODDIYARPATTU-CO-OPERATIVE-AGRICULTURAL-PRODUCERS-AND-SALES-SOCIETY-LTD-MUTUR.pdf
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WEERASOORIYA, J.—Koddiyarpattu Co-operative, Agricultural
Producers and Sales Society, Ltd., Mutur v. Abdul Hameed
1981Present: Weerasooriya, J.KODDIYARPATTU CO-OPERATIVE, AGRICULTURALPRODUCERS AND SALES SOCIETY, LTD., MUTUR,Appellant, and ABDUL HAMEED et al., Respondents
S.C. 242—C. R. Trincomalee, 802
Co-operative Societies Ordinance (Cap. 107)—Section 45 (2)—Award of arbitrator—Procedure for its enforcement—ule 38 (23) framed under s. 46 (2).
By rule 38 (13) of the iules made under section 46 (2) of the Co-operativeSocieties Ordinance :—
“ A decision or an award shall on application to any civil court having juris-diction in the area in which the society carries on business be enforced in thesame manner as a decree of such court.”
Held, that an application under rule 38 (13) for the enforcement of an awardshall be by petition and affidavit in proceedings by way of summary procedureunder Chapter XXIV of the Civil Procedure Code. The award cannot beenforced by way of a regular action.
PPEAL from a judgment of the Court of Requests, Trincomalee.
R. S. R. Coomarastvamy, with H. Mohideen, for the plaintiff-appellant.No appearance for the defendants-respondents.
Cur. adv. vult.
May 5, 1961. Weerasooriya, J.—
The plaintiff-appellant is a co-operative society registered under theCo-operative Societies Ordinance (Cap. 107). On a reference to arbitrationunder section 45 (2) of that Ordinance an award was given directing thedefendants-respondents to pay a sum of Rs. 280/28 to the plaintiff.This award the plaintiff sought to enforce by filing on the 19th August,1955, an action by way of regular procedure against the defendantsfor the recovery of the amount due. In the answer of the defendantsvarious defences were taken attacking the validity of the award. Aftertrial the learned Commissioner of Requests delivered judgment dis-missing the action with costs, one of the grounds for doing so being thatthe award was bad as there was no proof that the reference to arbitrationwas of a dispute touching the business of the plaintiff. From thisjudgment the plaintiff has appealed.
Rule 38 (13) of the rules made under section 46" (2) of the Co-operativeSocieties Ordinance, and published in Government Gazette No. 10,086of the 24th March, 1950, is in the following terms :
“ A decision or an award shall on application to any civil courthaving jurisdiction in the area in which the society carries on businessbe enforced in the same manner as a decree of such court.”
24WEERASOORIYA, J.—Koddiyarpattu Co-operative, Agricultural
Producers and Sales Society, Ltd., Mutur v. Abdul Ha-meed
This rule, it will be observed, does not specify the procedure to be adoptedin applying for the enforcement of the award as a decree of Court. Thequestion as to the correct procedure has been the subject of conflictingjudicial opinion, but in the recent case of Bandahamy v. Senanayake1 themajority of a divisional bench of seven Judges held that the correctprocedure is as stated by a divisional bench of three Judges inJayasinghe v. Boragodawatte Co-operative Stores, 2 which had affirmed thedecision in de Silva v. Galkissa Wattarappola Co-operative Stores Society.3The effect of these decisions is that an application under rule 38 (13)for the enforcement of an award should be bj^ petition and affidavitin proceedings by way of summary procedure under Chapter XXIVof the Civil Procedure Code.
The only authority that learned counsel for the plaintiff was able tocite in support of the procedure adopted in the present case is an obiterdictum of Gratiaen, J., in the last mentioned case, that one of the coursesopen to a person applying to enforce an award is to do so “ in a regularaction ”. But it was the alternative procedure laid down in the same case—of applying bjr petition and affidavit by way of summarj' procedure—that was adopted by the bench of tliree Judges (of whom Gratiaen, J.,himself was one) in the subsequent case of Jayasinghe v. BoraqodawaiteCo-operative Stores (supra) and held to be the correct procedure by themajority of the seven Judges in Bandahamy v. Senanayake (supra).The terms of rule 38 (13) clearly contemplate proceedings in the nature ofexecution proceedings, and not the filing of a regular action for theenforcement of an award. It is a well established rule that where anenactment creates new rights or obligations and provides a specialprocedure for their enforcement, resort must be had to the prescribedprocedure and to no other in enforcing those rights or obligations. Thereseems to be no ground for departing from that rule in the present case.
With all respect to Gratiaen, J., I am, therefore, of the opinion that thepresent action is misconceived and was right! j7 dismissed by the Com-missioner of Requests. The appeal is dismissed, but without costs, as thedefendants-respondents were not represented at the hearing of it. Inview of the particular ground on which the appeal is disposed of, no finaldecision is given by me in regai-d to the Commissioner’s findings on theissues framed at the trial. In the result, in any fresh proceedings that theplaintiff may be advised to take for the enforcement of the award in termsof rule 38 (13), the parties would appear to be free to raise such ofthe same issues as ma3T properly be said to arise for decision in thoseproceedings.
Appeal dismissed.
1 {I960) 62 N. L. B. 313.
3 (1953) 54 N. L. B. 326.
(1955) 56 N. L. B. 462.