Panditha v. de Zoysa
1954Present: Gratiaen 3,
C. PANDITHA, Appellant, and D. J. N. DE ZOYSA, RespondentS. C. 1,560—M. C. Oalle, 8,558
•Co-operative Societies Ordinance (Cap. 107), as amended by A.ct No. 21 of 1949—Section 60A.—-Honey due to registered society—Mode of recovery.
Before the machinery of a Magistrate’s Court is invoked for the purpose ofrecovering money alleged to be due by a person to a Co-operative Society, therequirements of section 50a. of the Co-operative Societies Ordinance must bestrictly proved.
XA-PPEAL from an order of the Magistrate’s Court, Galle.
C. G. Weeramantry, for the appellant.
R. S. R. Coetmaraswamy, with E. B. Vannitamby, for the liquidatorrespondent.
GKRATIAER 3.^—Panditha v. da Zoysa
March 19, 1954. Gsatiabn J.—
This is an. appeal against an order made under section 50a (2) of theCo-operative Societies (Amendment) Ordinance, No. 21 of 194§, wherebythe Magistrate of Guile made an order for the recovery of a sum alleged tohe due by the appellant to a Co-operative Society as if it were a fineimposed by a sentence of the Magistrate. '
In my opinion, the order was prematurely made. Section 50a providesan extraordinary remedy and in all the circumstances it seems to- methat before the machinery of the Magistrate’s Court is invoked for thepurpose of recovery, the requirements of the section must be strictlyproved. For instance, there must be proof to the satisfaction of theMagistrate that in the course of an audit under section 17 of the Ordinanceor of an inquiry or inspection under section 35 or in the course of thewinding-up of a registered society it had appeared‘that a sum of moneywas due to the society from a person who had taken part in the organizationor management of the society or from any past or present officer of theSociety. It must be further proved that before making any order underthe section the Registrar had given that person an opportunity of beingheard and of showing cause why such an order should not be made.Finally it must be proved that the order sought to^be enforced w&s in factsigned by the proper officer. None of these things can be presumed by acourt.
I therefore quash the order and send the case back to enable the re-,spondent to take such steps to enforce the alleged order as he may beadvised. I make no order as to the costs of this appeal, but if the re-spondent should ultimately fail at the fresh trial he will pay to the appellant-a sum of Rs. 52 • 50 as the costs of this appeal.