JUDGMENT
Rajesh Tandon, J.
1. Heard Ms. Krishi Shukla, counsel for the appellant and Shri Sarvesh Agarwal, counsel for the respondent.
2. Both the above second appeals have been filed under Section 100 of the Code of Civil Procedure praying for setting aside the judgment and decree dated 19.9.1983 passed by the Additional District Judge, Dehradun.
3. Both the parties have agreed that the matter is squarely covered by the judgment of second appeal No. 292/2001 passed by this Hon’ble High Court on 11.5.2007. The observations made by the Hon’ble High Court are as under:
11. The first ground taken in this appeal relates to the right of the Society to mortgage the property. Section 86 of the U.P. Cooperative Societies, Act, 1965, suggests that a Cooperative Society has a right for the purpose of raising a loan from the State Government or any Cooperative Society, mortgage without possession any land held by it in its own name and, after obtaining an authorization in writing by its members. In the present case the Jagat Gram Sanyukta Sahkari Samiti did not own the suit property in its own name, but it was authorized to mortgage it after obtaining a written authorization from its members. The owner of the suit property Sri Shiv Chand Kumar had expressed his willingness to authorize the society to mortgage his land for the purpose of raising the loan from the Cooperative Bank, which is a cooperative society duly registered under the Act. The validity of the authorization of Sri Shiv Chand Kumar has been doubted by the trial court on the ground that the written authorization is not attested by some officer. Provisions of Rule 310 of U.P. Cooperative Societies Rules, Sub-clause 3 provides that the authorization for mortgage has to be attached by a Gazetted Officer or an Officer of Cooperative Department not below the rank of group second inspector. The authorization dated 20.10.69 on record is attested copy of the original attested by the Secretary Jagat Gram Societ Sanyukta Sahkari Samiti and superintendent of Cooperative Department Society, Dehradun. The authorization given by Shiv Chand Kumar, member of the Society, has not been challenged by the said member. He had duly authorized the Society to mortgage his land. The need of loan of the Society has not been challenged. There is nothing on record to show that the transaction of the mortgage was sham or it was conducted in order to defraud the creditors. Further Sri S.K. Sharma has deposed that the Society had taken loan from the Bank for development of the farming. Therefore, possibility of there being any foul play is ruled out.
12. The first appellate court has given categorical finding on the issue. The finding of the first appellate court on the point does not require any interference of this Court. Accordingly it is held that the Society had right to mortgage the property of its member in order to raise loan for farming of the Society. The trial court did not misread the provision of Section 86 of the U.P. Cooperative Societies Act, 1965. The substantial question of law is decided accordingly.
13. The ground No. 2, above, relates to the power of the Society to sell the property under mortgage. It is to be noted here that there is no prohibition in the Act which eclipses the Society’s power to sell its landed property. The Society, which has power and authority to create encumbrance on its property, also had a power to discharge the said obligation. If the Society was competent to take loan by mortgaging the land of its members, it had full authority to repay that loan by selling the land under mortgage. Rule 338 of the U.P. Cooperative Societies Rules postulates that no immovable property shall, except as provided in the Act, be sold in immoveable property shall, except as provided in the Act, be sold in execution of an award or order unless it has been previously attached, provided it that where the award or order has been obtained on the basis of a mortgage of such property, it shall not be necessary to attach it. In view of these provisions it may be observed that the rule impliedly authorizes a society to get its land sold. The land under mortgage can be sold even without attachment provided as award has been obtained before sale the award proved; that the Bank had obtained before sale the award from the Secretary of the Cooperative Department on the bass of the mortgaged property. It has further been proved by Sri Sharma that the sale was negotiated between the society and purchaser by the Bank itself and he was authorized to be a witness of the sale deed. The evidence of this witness finds corroboration from the sale deed in favour of the plaintiff. When the Bank had obtained an award against the society, it was fully competent to negotiate the sale transaction in consultation with the society. Further the resolution dated 13.2.75, of the Samity has duly authorized Sri Shiv Chand Kumkar to execute the sale deed of the land under mortgage in order to repay the loan of the Cooperative Bank. It has come in evidence that the sale proceed was paid to the Bank.
14. I have also perused the finding of the first appellate court on the point. The first appellate court has recorded categorical finding on the point. I am of the view that the finding of the first appellate court holding that the Society was competent to sell the mortgaged property, is well reasoned. Accordingly the substantial question of law is decided in favour of the plaintiff/respondent and against the appellant/defendant.
15. So far as the point on the finding of bona fide purchased is concerned, it has come in evidence that the land was purchased by the plaintiff/respondent through registered sale deed and the land has also been mutated in his name. The sale consideration was paid to the Society and the Society paid this amount to the Bank to clear its debts. Paper No. 10-A/1 is extract of Khatauni which shows that Naib Tehsildar on 12-1-76 passed order for mutation of the name of the plaintiff in place of Jagat Gram Sanyukta Krishi Sahkari Samit Ltd. Further the plaintiff purchased the land long before the date of attachment, and, therefore the attachment is not legal from this point of view also. It is also settled law that the court had no jurisdiction to attach the property which does not belong to the judgment debtor. Even the trial court had held that the Society had executed the sale deed with a view to pay of the loan of the bank and not in order to defaud the creditors. In the facts and circumstances of the case it can be inferred that the plaintiff/respondent was a bona fide purchaser of the disputed land. The substantial question of law is decided accordingly.
16. Now coming to point No. 4 above, it has come in the judgment of the Civil Judge, that notice paper No. 4-C dated 17.5.76 are on record. The suit was filed on 23.7.76 hence the trial court held that it was not possible to presume that notices were served on the defendants before 23.5.76, i.e. two months prior to filing of the suit. The presumption drawn by the trial court is imaginary in the event when the suit was filed after two months of sending the notice and the copy of notice and the postal receipt have been brought on record. It is also important to note here that the notice sent to the defendant was not received back and a presumption would have been drawn by the trial court that it was served upon the addressee. It may also be noted here that at the time of admission of the suit, no preliminary objection has been shown to be raised and for the first time formal objection was raised in the written statement after the admission of the suit. In the aforesaid circumstances this substantial question of law is also decided in favour of the plaintiff/respondent and against the appellant/defendant.
17. In view of the findings given on the questions above, framed in the appeal, the appeal lacks merit and is liable to be dismissed.
4. In view of the matter that both the second appeals being squarely covered by the judgment passed by the Hon’ble High Court to the above effect are liable to be dismissed.
5. Consequently, both the second appeals are devoid of merit and are dismissed with costs.
