IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 295 of 2011(O)
1. JUDY 'D'SILVA, S/O. LATE JOSEPH 'D'SILVA
... Petitioner
Vs
1. THE WAYANAD DISTRICT CO-OPERATIVE BANK
... Respondent
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/01/2011
O R D E R
K.T.SANKARAN, J.
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O.P(C).No.295 OF 2011
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st
Dated this the 21 day of January, 2011
JUDGMENT
The petitioner, the judgment debtor in ARC
No.139 of 2002 on the file of the Court of the
District Judge of Wayanad, challenges the order
passed by the learned District Judge holding that
it has jurisdiction to entertain the Execution
Petition. The Award in ARC No.139 of 2002 was
passed by the arbitrator, namely, the Joint
Registrar(General) of Co-operative Societies under
Section 70 of the Kerala Co-operative Societies
Act. By the award, the petitioner is liable to pay
a sum of Rs.8,01,608/- to the respondent. E.P.No.30
of 2009 was filed by the respondent before the
District Court to execute the award.
2. The petitioner/judgment debtor filed an
objection stating that the District Court has no
jurisdiction. However, when the Execution Petition
O.P(C).No.295 OF 2011 2
came up for hearing, the judgment debtor submitted
that he is ready to pay the decree debt in
instalments. The Executing Court granted instalment
facility to the petitioner permitting him to pay
the decree debt in instalments of Rs.50,000/- per
month. The judgment debtor did not pay any of the
instalments. After three months of default, on
6.11.2010, the judgment debtor submitted that he
would pay the amount on 10.11.2010. The E.P. was
posted to that date. However, the judgment debtor
did not pay any amount. The Executing Court ordered
to issue notice under Rule 37 of Order 21 of the
Code of Civil Procedure. At that juncture, the
judgment debtor filed OP No.833 of 2010 before this
court pointing out the grievance that the learned
District Judge did not consider the question of
lack of jurisdiction raised by him. OP No.833 of
2010 was disposed of directing the learned District
Judge to consider the objection regarding
jurisdiction.
O.P(C).No.295 OF 2011 3
3.The learned District Judge repelled the
contention raised by the petitioner, relying on the
decision in Bishop Dr.Mathews Mar Savarios v.
Thankachan[(2001(1) KLT 932)]. In 2001(1) KLT 932,
the learned Single Judge of this court held as
follows:
“From the above rulings it is clear
that in spite of the fact that the
Munsiff’s Court and the Subordinate
Judge’s Court will have the jurisdiction
to entertain and try a suit or dispute of
civil nature subject to pecuniary and
territorial jurisdiction,the District
Court being the principal Court of
original jurisdiction has got jurisdiction
to entertain and try itself or make it
over to a subordinate court having
competent pecuniary jurisdiction even if
it is lacking in territorial jurisdiction.
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Merely because of the fact that the
ordinary procedure of filing suits before
the lowest court of competent jurisdiction
is not followed, it cannot be contended
that the institution of the suit before
the District Court in this case is
illegal. Therefore, the contention raised
by the petitioner that the above suit
filed before the District Court, Ernakulam
is not maintainable for want of
jurisdiction and therefore, the I
Addl.District Court, Ernakulam to which
the suit is made over by the District
Judge also has no jurisdiction to
entertain and try the suit and therefore,O.P(C).No.295 OF 2011 4
the order passed by the lower court
appointing a receiver pending disposal of
the suit is illegal and unsustainable, is
of no force.”
4. The learned counsel for the petitioner
submitted that in all similar cases, Execution
Petitions are filed either before the Munsiff’s
Court or before the Subordinate Judge’s Court
depending upon the valuation of the proceedings.
It is submitted that in this case, probably under
the erroneous impression that it is an award passed
under the Arbitration and Conciliation Act, the
Execution Petition was filed before the District
Court.
5. Whatever may be the reason for filing the
Execution Petition before the District Court, it
cannot be held that the District Court lacks
jurisdiction to entertain the Execution Petition,
in the light of the principles laid down in 2001(1)
KLT 932. The Execution Petition was filed in 2009.
O.P(C).No.295 OF 2011 5
On receipt of notice under Rule 22 of Order 21 of
the Code of Civil Procedure, the petitioner
appeared and prayed for instalment facility. The
court granted that request. However, the
petitioner did not pay any amount. Thereafter, he
filed the Original Petition before this court
challenging the proceedings before the Executing
Court. The petitioner got all the benefits from
the Executing Court and when it came to the fag end
of the proceedings, he raised the contention which
was apparently abandoned by him. The order passed
by the learned District Court does not suffer from
any illegality or error of jurisdiction. No
grounds are made out for invoking the jurisdiction
under Article 227 of the Constitution of India.
The Original Petition is, accordingly,
dismissed.
K.T.SANKARAN,
JUDGE.
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