IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 220 of 2010(O)
1. K.HARIDASAN, HARIPURAM,
... Petitioner
Vs
1. V.K.ACHUTHAKURUP,
... Respondent
For Petitioner :SRI.C.VALSALAN
For Respondent :SRI.PULIKKOOL ABUBACKER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/06/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.220 of 2010
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Dated this the 23rd day of June, 2010
J U D G M E N T
This Writ Petition is in challenge of Ext.P12, order rejecting
the objection filed by petitioner-judgment debtor and directing
delivery of property by 06.01.2010. Petitioner was indebted to the
Kozhikode District Co-operative Bank (for short, “the Bank”)
which obtained an award against petitioner for payment of the
amount with interest. Thereafter property of petitioner was
brought up for sale under the Co-operative Societies Act (for
short, “the Act”) on 21.8.2007 and the property was purchased by
the respondent. In the meantime petitioner approached the Kerala
State Farmers Debt Relief Commission (for short, “the
Commission”) with an application based on which the Commission
passed Ext.P2, order dated 15.11.2007 to maintain status quo.
That order was addressed to the General Manager of the Bank.
Thereafter Joint Registrar of Co-operative Societies issued Ext.P1,
sale certificate on 21.04.2008 according to the petitioner in
violation of Ext.P2, order dated 15.11.2007. Pursuant to that sale
certificate respondent launched execution in the court of
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learned Sub Judge, Koyilandy. Petitioner preferred his objection to
the execution which as per Ext.P12, order was rejected and
delivery of property was ordered. Petitioner filed W.P(C)
No.27195 of 2008 in this Court challenging sale of property by the
authorities under the Act on various grounds. This Court observed
that issues raised are on disputed facts which have to be settled
otherwise, in accordance with the provisions of law, petitioner has
an alternative efficacious remedy under the Act and Rules to
challenge the impugned sale and execution proceedings in the
court of learned Sub Judge and closed the Writ Petition as per
Ext.P4, judgment reserving that right of petitioner and directing
that respondent shall not alienate or encumber the property for a
period of three months to facilitate petitioner move appropriate
authority under the Act and Rules. Pursuant to that order
petitioner has filed preferred Ext.P6, appeal to the Co-operative
Tribunal (for short, “the Tribunal”) challenging sale of property in
favour of respondent on several grounds including that sale was
conducted without notice to the petitioner. Petitioner has also
filed an application for stay of execution proceedings (Ext.P7). I
am told that no orders have been passed on Ext.P7. Nor has
Ext.P6, appeal been disposed of. Petitioner also preferred
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Ext.P14, application to the Joint Registrar under Rule 82 of the
Rules requesting to set aside the order on similar grounds. In
the meantime petitioner has submitted a representation before
the Minister for Co-operative Societies complaining about
illegality in the sale of property. The Minister on his part
forwarded that complaint to the Joint Registrar for consideration
regarding which petitioner has been given Ext.P13, notice. I am
told that respondent also has been issued with notice by the Joint
Registrar on the said petition. Joint Registrar has not disposed of
the said petition and representation. Grievance of the petitioner
is that in the meantime respondent is proceeding with execution
pursuant to Ext.P1, sale certificate and is attempting to take
delivery of the property. If before that happens petitioner’s
challenge before the Tribunal and Joint Registrar as aforesaid is
not considered, petitioner will be put to irreparable loss and
injury.
2. When this Writ Petition came up for admission this
Court directed the petitioner to deposit a sum of Rs.2,60,000/- in
the executing court which the petitioner has complied. Petitioner
seeks a stay of delivery of the property pursuant to Ext.P12,
order. Learned counsel requests, in the alternative that delivery
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of the property may be stayed until the Tribunal and Joint
Registrar disposed of the appeal and representation pending
before them challenging validity of the sale and Ext.P1, sale
certificate. Learned counsel has also expressed willingness of
petitioner to pay all amount due to the respondent and settle the
matter.
3. Learned counsel for respondent contends that none of
the argument advanced by petitioner need be considered since
challenge in this Writ Petition is only to Ext.P12, order of the
executing court directing delivery of the property which is not
shown to be suffering from any illegality or irregularity and hence
this Court has to keep its hands off from the execution
proceedings pursuant to Ext.P12, order. According to the learned
counsel if at all proceedings pending before the Tribunal and Joint
Registrar are disposed of in favour of petitioner, it is not as if he
is without any remedy even if it is assumed that pursuant to
Ext.P12, order the property in question is delivered over to the
respondent. Learned counsel states that notwithstanding the
sale and issue of sale certificate respondent was not able to take
any income from the property which continues to be enjoyed by
petitioner.
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4. It is not necessary to go into the correctness of
Ext.12, order in that it is not shown that the said order in itself
suffered from any illegality or is vitiated by any other
circumstance warranting interference by this Court. Now question
before me is only whether Ext.P12 is to be stayed and if so until
what time.
5. It is not disputed by the respondent also that
proceedings initiated by the petitioner before the Tribunal and
Joint Registrar and request for stay of execution are pending. It is
also not disputed that pursuant to the order passed by this Court
petitioner has already deposited Rs.2,60,000/- in the executing
court whereby he has expressed his willingness to settle the
matter with the respondent and pay off the amount due to the
respondent. That offer, learned counsel for petitioner has
reiterated before me and stated that if respondent is willing to
settle the matter petitioner is prepared to pay reasonable amount
to the respondent. It is open to the respondent to consider
whether that offer of the petitioner could be accepted or not. I
leave that matter there.
6. Having regard to the facts and circumstances of the
case I am inclined to think that it will not be just and proper, also
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taking into account the fact that petitioner has already deposited
Rs.2,60,000/- in the executing court to allow delivery of property
for the time being and particularly as the proceedings initiated by
petitioners are pending consideration before the Tribunal and Joint
Registrar. Hence I am inclined to direct that proceeding for
delivery of the property pursuant to Ext.P12, order will stand in
abeyance for a period of three months from this day.
Resultantly, the Writ Petition is disposed of in the following
lines:
(i) Delivery of property pursuant to Ext.P12,
order will stand in abeyance for a period of three
months from this day.
(ii) It will be open to the petitioner to request
the Tribunal and the Joint Registrar to dispose of the
appeal and other proceedings pending before those
authorities at the earliest.
(iii) If petitioner makes any request before
such authorities, such authorities shall decide the
proceedings pending before them within three
months from the date of request.
(iii) Since the sum of Rs.2,60,000/- (Rupees
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Two Lakhs and Sixty thousand only) deposited by
petitioner in the executing court remains without
accruing interest I direct that the said amount be
transferred to the Sub Treasury concerned
to be kept in Fixed Deposit for a period
of six months from this day in the name of learned
Sub Judge.
(iv) Learned Sub Judge shall decide as to the
person entitled for the said amount in case parties
enter into settlement regarding the matter and
pursuant to that settlement sale of the property and
Ext.P1 sale certificate are cancelled by the
appropriate authority.
I make it clear that the question whether sale and the consequent
issue of sale certificate are legal and proper and are liable to be
set aside are matters which the appropriate authorities shall
decided untrammelled by any of the observation herein.
THOMAS P. JOSEPH, JUDGE.
vsv