IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).No. 24534 of 2008(U) -------------------------- EA.321/2007 IN FILE NO.3503/01 of ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): --------------- THE CHERTHALA SERVICE CO-OPERATIVE BANK LTD.NO:1688, CHERTHALA.P.O. BY ADV. SRI.C.H.CHANDRABHANU SRI.NIDHI BALACHANDRAN RESPONDENT(S): --------------- 1. VENUGOPALAN, S/O.GOPALAN, BUSINESS AGED ABOUT 55 YEARS, VAZHACHIRA HOUSE, CHERTHALA SOUTH MURI OF CHERTHALA SOUTH VILLAGE, CHERTHALA.P.O. 2. LALITHA, W/O.VENUGOPALAN, HOUSEWIFE, AGED ABOUT 50 YEARS, OF DO- DO- DO- . ADV. SRI.JOBY CYRIAC FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010 ALONG WITH W.P.(C).NO.24544/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).NO.24534/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION FILED BY THE PETITIONER AS E.A.NO.201/2004 IN FILE 3503/2001 DATED 1.3.2004. EXT.P2: COPY OF THE B DIARY OF THE PROCEEDINGS TILL 10.1.2008. EXT.P3: COPY OF THE B DIARY OF THE PROCEEDINGS TILL 11.12.2007. EXT.P4: COPY OF THE PETITION FILED BY RESPONDENTS AS E.A.NO.320/2007 DATED 10.7.2007. EXT.P5: COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT, CHERTHALA IN E.A.NO.321/2007 DATED 26.11.2007. EXT.P6: COPY OF THE NOTICE ISSUED TO THE ADMINISTRATOR BY THE MUNSIFF'S COURT, CHERTHALA DATED 28.12.2007. EXT.P7: COPY OF THE AFFIDAVIT FILED BY THE ADMINISTRATOR BEFORE MUNSIFF'S COURT, CHERTHALA DATED 10.1.2008. EXT.P8: COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT, CHERTHALA IN E.A.NO.321/2007 DATED 15.2.2008. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------------------------- W.P.(C).Nos.24534 & 24544 of 2008 ------------------------------------------------- Dated this the 25th day of June, 2010 J U D G M E N T The common petitioner in both these writ petitions is a co-operative society. The respondents are also common, who are husband and wife, against whom two awards had been passed in favour of the petitioner bank, in respect of loans availed from the bank. The petitioner/bank moved two execution petitions before the Munsiff's Court, Cherthala to execute those awards. Admittedly, in such execution proceedings, complying with the necessary steps as per rules, the properties of the judgment debtors/respondents were brought to sale. After such sale, it is also not disputed, the sales were confirmed in the respective case. After issue of the sale W.P.(C).Nos.24534 & 24544 of 2008 :: 2 :: certificates the petitioner/bank moved an application, in each case, for delivery of the property covered by the certificate. Pending enquiry on that application, the respondents moved two petitions one in each case, captioning them as under Sections 47 and 151 of the Code of Civil Procedure and also under Order XXI Rule 19 of the Code, seeking cancellation of the sale certificates and for quashing all proceedings over the sale of the property. Both sides submit that there was a reference of such petitions for consideration before the Adalath. After such reference, the execution court proceeded as if a settlement had been effected by the parties for cancellation of the sale certificates and all proceedings earlier which led to sale, on the W.P.(C).Nos.24534 & 24544 of 2008 :: 3 :: judgment debtors discharging whatever amount outstanding on the award then due to the bank. The judgment debtors have also sought for re- conveyance of the properties sold in the respective case in favour of the bank. The execution court, by order dated 15.2.2008, dismissed the execution petitions holding that no re-conveyance of the property sold is warranted as the sale had been cancelled. Under that order, it was also stated that by virtue of a previous order dated 26.11.2007 all the earlier orders (probably relating to the sale) stood reviewed and cancelled. Dismissing the execution petitions by separate orders, direction was given to the office to send a communication to the Sub Registry informing the cancellation of the auction W.P.(C).Nos.24534 & 24544 of 2008 :: 4 :: sale. While dismissing the execution petitions, the execution court further observed that if the decree holder bank is entitled to any amount over and above the amount deposited with the bank, the bank is at liberty to file a separate execution petition for realisation of such amount. Propriety and correctness of those orders which are produced as Ext.P8 in the respective writ petition, are challenged invoking the extraordinary jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. While the settlement talks were going on, after the judgment debtors moved applications for re-conveyance of the property cancelling the sale certificates issued in favour of the W.P.(C).Nos.24534 & 24544 of 2008 :: 5 :: bank, according to the learned counsel for the bank, the judgment debtors had deposited some amount in their savings bank account maintained in the bank. Though a representation was made by the judgment debtors during the settlement talks, that such account would be transferred to the account of the bank, it was not done. Sale of the properties of the judgment debtors now stands quashed by the orders of the execution court, according to the learned counsel, with the decrees remaining unsatisfied. The learned counsel questioned the jurisdiction of the execution court to quash the sale certificates which were issued after confirmation of the sale, on applications moved by the judgment debtors without looking into the question W.P.(C).Nos.24534 & 24544 of 2008 :: 6 :: whether any further enquiry is permissible over the execution, discharge and satisfaction of the decrees under Section 47 of the Code of Civil Procedure. In fact, no enquiry as contemplated under that Section arose for consideration in the present case, and further more, no enquiry thereof was also conducted by the court, is the submission of the counsel. Even the amount deposited towards the sum due to the petitioner bank in the savings bank account of the judgment debtors had been withdrawn by them during the pendency of the proceedings and till date, no amount is paid, is the further submission of the bank. The learned counsel appearing for the judgment debtors submitted that such withdrawals had been effected after intimating the bank. W.P.(C).Nos.24534 & 24544 of 2008 :: 7 :: However realising that it is difficult to sustain the orders passed by the execution court cancelling the sale certificates and also the proceedings which led to sale after confirmation of the sale by that court, a further opportunity is requested by the learned counsel for the judgment debtors to settle the matter with the bank and thereby to get back the properties sold in auction. 3. With the writ petitions, copy of the B-Diary in the execution proceedings in the respective case on the file of the court below, has been produced. Perusing the B- Diary in the respective case, it is noticed, though there was a reference to the settlement, no award was passed by the Adalath. However, on the basis of a submission W.P.(C).Nos.24534 & 24544 of 2008 :: 8 :: made by the counsel for the decree holder bank that he had no objection in setting aside the sale on the entire amount due paid by the judgment debtors, the execution court had passed an order on 23.10.2007 for re-conveying the properties sold to the judgment debtors. Whatever be the statements made before the execution court, as recorded in that order, it is practically conceded that there was no payment of the entire amount,nor even a part of the same. Assuming that there was such payment, the larger question that emerges for consideration is whether the execution court has jurisdiction after the sale certificates were issued, to cancel such certificates and also quash the previous proceedings which led to sale of the property after confirmation of W.P.(C).Nos.24534 & 24544 of 2008 :: 9 :: sale. Once the sale is confirmed, the issue of the sale certificate is nothing but an administrative act and not a judicial act. Of course, if there is a challenge to the sale or, later, after the issue of the sale certificates, on confirmation of the sale, a party to the proceeding can move an application under Section 47 of the Code of Civil Procedure for determination of any question relating to the execution, discharge and satisfaction of the decree. In such a petition, it is also open to him, even to challenge the sale, provided, it is tainted with illegality or for such other reasons including lack of jurisdiction of the execution court. But, on the basis of a petition under Section 47 of the Code of Civil W.P.(C).Nos.24534 & 24544 of 2008 :: 10 :: Procedure, without any enquiry and entering a finding on any of the questions involved empowering the court to hold that the sale is liable to be set aside, it is not open to the execution court, even on the settlement effected by the parties, to cancel the sale certificates and direct re-conveyance of the properties sold to the judgment debtors. The execution court has definitely exceeded its jurisdiction in passing Ext.P8 order, and also the previous orders leading to Ext.P8, as reflected in the copies of the B-Diary of the respective case. Ext.P8 and also the previous orders passed by the court that the sale certificates shall stand cancelled are without jurisdiction and those orders shall stand quashed. The execution court is directed to W.P.(C).Nos.24534 & 24544 of 2008 :: 11 :: dispose of the application moved by the judgment debtors, which had given rise to Ext.P8 order in the respective case, taking note of the observations made above and in accordance with law. Similarly, the applications moved by the decree holder in the respective case for delivery of the property will also be taken up for consideration, but, of course, subject to and after disposal of the aforesaid applications of the judgment debtors. 4. It it is made clear that it is open to the judgment debtors to arrive at any settlement with the bank, irrespective of the orders passed in the writ petitions for re- conveyance of their property sold in court auction in satisfaction of the decree, W.P.(C).Nos.24534 & 24544 of 2008 :: 12 :: payment off the amount due from them to the bank and thus avoid delivery of the properties covered by the sale certificates through court. The learned counsel for the petitioner bank would also submit that the bank is interested only in getting the amount covered by the decree with interest and with the cost incurred in the proceedings and not in the properties covered by the sale certificates. The learned counsel for the judgment debtors sought for a period two months for settlement by payment to the bank with a request for issuing a direction to the execution court to keep further proceedings in the execution proceedings in abeyance for such period. The learned counsel for the respondent has no objection in granting such time. So much so, W.P.(C).Nos.24534 & 24544 of 2008 :: 13 :: there will be a direction to the court below, to take up the execution proceedings with respect to the applications after a period of two months from this date. 5. The parties are directed to appear before the court below on 30.8.2010. Writ petitions are disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//