IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 27725 of 2010(O) --------------------------------------- EP.145/2009 of M.C.,PARAPPANANGADI .................... PETITIONER(S): ----------------------- 1. SURESH BABU, S/O.VELAYUDHAN, VILAKKIRI KANATH HOUSE, PARIYAPURAM, MUKKOLA, MALAPPURAM. 2. MADHAVAN, S/O.VELAYUDHAN, KONDATHAMVEETTIL, RAYIRIMANGALAM, NEAR KPNM SCHOOL, MALAPPURAM. 3. JAYAN, S/O.AYYAPPAN, PALAKKAL KANDI HOUSE, PARIYAPURAM, AMBEDKAR COLONY, MALAPPURAM DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------------------- THE SECRETARY, TANUR SERVICE CO-OPERATIVE BANK LTD., TANUR, MALAPPURAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kl. THOMAS P JOSEPH,J. --------------------------------------- W.P(C).NO. 27725 OF 2010 ------------------------------------------ Dated this the 7th day of September, 2010. JUDGMENT Judgment debtors in E.P.No.145 of 2009 of the court of learned Munsiff, Parappanangadi executing an award passed by the Assistant Registrar of Co-operative Societies are the petitioners before me challenging Ext.P7, order issuing warrant of arrest to the petitioners on the finding that in spite of having means, they have neglected or refuse to pay the amount due under the award. Petitioners raised the following contentions in this writ petition. i. The execution petition is not maintainable before the Civil Court since suit or other proceedings in respect of a “dispute” could not be entertain by the Civil court. ii. It is not shown that a certificate has been issued by the Registrar stating that amount due under the award remains unpaid. iii. Finding of the executing court that petitioners have means to pay the amount cannot be sustained. 2. Point No.1: Learned counsel for petitioners placed reliance on Section 69(1)(b) of the Kerala Co-operative Societies Act, 1969 (for short ‘the Act’) in support of his contention that the execution petition is not W.P(C).NO. 27725 OF 2010 2 maintainable in the Civil Court. According to the learned counsel, “other proceedings referred to in the provision quoted above includes execution proceedings in the Civil court. 3. I am unable to give assent to the argument of learned counsel Section 69 read with Section 100 of the Act ousted jurisdiction of the Civil Court to entertain the suit or other proceedings with respect to a “dispute” as defined in Section2(i) of the said Act. That is because under Section 70 of the Act provision of for arbitration of such disputes has been made. The “dispute” in this case was resolved by arbitration and the Assistant Registrar has passed an award which, it is no dispute before me has become final. Section 69(i)(b) relied on by learned counsel does not refer to execution of the award passed by the arbitrator, in the Civil court. Execution is covered by Section 76 of the Act. That provision says that once of the award is passed under Section 70 of the Act, if such award is not carried out, on a certificate signed by the Registrar or any person authorized by him in this behalf it be deemed to be a decree of a Civil court and shall be executed in the same manner as a decree of such court. Section 76 (a) of the Act empower the Civil court to execution the award in the same manner as if it is a decree of that court. Hence, contention that the award is no executable before the Civil court cannot be accepted. W.P(C).NO. 27725 OF 2010 3 4. Point No.2: It is contended that the certificate referred to in Section 76(a) of the Act has not been produced. That contention cannot be entertained since no such objection was raised in the executing court. 5. Point No.3: Lastly the question is whether finding of learned Munsiff that petitioners have the means require interference. Though, PW1 gave evidence on behalf of respondent and stated that petitioner No.1 owns a Tata Sumo and is earning money by letting out that vehicle, in cross examination he stated that petitioners are Coolies, earning Rs.400/- per head, per day. Petitioner No.1 was examined as RW1. He stated that himself and other petitioners are earning Rs.300/- per head, per day. Executing court observed if that be so, it is possible for petitioners to spare Rs.100/- per head, per day, and taking that petitioner would have employment for 20 days a month, they could have easily paid at least Rs.6,000/- per month to the respondent and discharged the liability of Rs.17,676/- but no amount has been paid. This Court in Kuppuswamy v. P.G.Menon (1992(2) KLT 203) has held that though the initial burden to prove means is on the decree holder, it is not as if he is bound to give all details of source of income of judgment debtor. If some evidence is given indicating that judgment debtor has means, it is for him to rebut that presumption. In this case, even the evidence of RW1 shows that petitioners have the means to discharge the liability. W.P(C).NO. 27725 OF 2010 4 Executing court has considered the materials on record and come to the right conclusion. The order under challenge in the circumstances, require no interference. The Writ Petition is dismissed. THOMAS P JOSEPH,JUDGE. pm