The Berhampur Cotton Weavers' Cooperative Society Ltd. Vs. Jagannath (25.09.1986 - ORiHC) - Court Judgment

Excerpt:

.....may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 15,000/-.2. the main pre-condition to be satisfied for direction under order 38, rule 5 c. i am satisfied that the learned trial judge has not applied his judicial mind to give the direction. this being a suit for recovery of money, the trial court would do well in disposing of the suit within four months from the date of receipt of this order.orders.c. mohapatra, j.1. a co-operative society is the petitioner in this civil revision against an order under order 38, rule 5 civil procedure code where it has been directed not to withdraw the amount from its saving bank accounts until it furnishes security to the extent of rs. 15,000/-.2. the main pre-condition to be satisfied for direction under order 38, rule 5 c.p.c. is the intention of the party to defeat the decree to be passed. a co-operative society has no living mind. it is to act through individuals. there is no clear finding as to how the trial court gathered the intention of the co-operative society. the allegation in the petition was that the defendant proclaimed to withdraw the amount from the saving bank to defeat or delay the realisation of the amount to be decreed. the co-operative society not having any voice of the own, the manner of proclaiming is to be gathered. i am satisfied that the learned trial judge has not applied his judicial mind to give the direction. this amounts to exercise of jurisdiction with material irregularity and accordingly, the impugned order is quashed.3. in the result, the civil revision isallowed, no costs. the trial court is.....

Judgment:

ORDER

S.C. Mohapatra, J.

1. A Co-operative Society is the petitioner in this civil revision against an order under Order 38, Rule 5 Civil Procedure Code where it has been directed not to withdraw the amount from its Saving Bank accounts until it furnishes security to the extent of Rs. 15,000/-.

2. The main pre-condition to be satisfied for direction under Order 38, Rule 5 C.P.C. is the intention of the party to defeat the decree to be passed. A co-operative society has no living mind. It is to act through individuals. There is no clear finding as to how the trial court gathered the intention of the Co-operative Society. The allegation in the petition was that the defendant proclaimed to withdraw the amount from the Saving Bank to defeat or delay the realisation of the amount to be decreed. The Co-operative Society not having any voice of the own, the manner of proclaiming is to be gathered. I am satisfied that the learned trial Judge has not applied his judicial mind to give the direction. This amounts to exercise of jurisdiction with material irregularity and accordingly, the impugned order is quashed.

3. In the result, the civil revision isallowed, No costs. The trial court is directed to reconsider the question giving parties opportunity to adduce further evidence. This being a suit for recovery of money, the trial court would do well in disposing of the suit within four months from the date of receipt of this order. The records he sent hack immediately.