IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WP(C).No. 9451 of 2008(A) ------------------------- OS.3142/2006 of II ADDL.MUNSIFF COURT,THRISSUR .................... PETITIONERS: PLAINTIFFS ---------------------- 1. THOMAS, AGED 59 YEARS S/O.KOCHAPPU PARAPPULLY CHERPU VILLAGE AND DESOM, THRISSUR TALUK THRISSUR DISTRICT. 2. MARY, AGED 48 YEARS W/O.PARAPPULLY THOMAS CHERPU VILLAGE AND DESOM, THRISSUR TALUK THRISSUR DISTRICT. BY ADV. SRI.K.A.SATHEESA BABU RESPONDENTS: DEFENDANTS ----------------------- 1. SARADHA, AGED 53 YEARS W/O.PURUSHOTHAMAN KALAPURAYIL (VADAKOOT) EVANNOOR DESOM,VIYYUR VILLAGE, THRISSUR TALUK THRISSUR DISTRICT. 2. AVINISSERY SERVICE CO-OPERATIVE BANK LTD NO.400, POST AVINISSERY, THRISSUR, REPRESENTED BY ITS SECRETARY. 3. SPECIAL SALE OFFICER NO.4, COOPERATIVE SOCIETY ASSISTANT REGISTRAR OFFICE (GENERAL), THRISSUR. 4. TALUK SURVEYOR, THRISSUR TALUK THRISSUR DISTRICT 5. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. BY GOVERNMENT PLEADER SMT.R.BINDU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.9451 of 2008 ------------------------------------------- Dated this the 19th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the learned II Additional Munsiff, Thrissur in O.S.No.3142/06 whereby the learned Munsiff considered the maintainability of the suit. 2. The facts of the case would reveal that the plaintiff in the suit claims to be interested in the property described as A and B schedule which is attached by the defendant invoking the power under the Co-operative Societies Act. It is submitted that there is a fraudulent collusion and therefore, a suit is instituted for an injunction. The defendants contend that a suit before the Civil Court is not maintainable and therefore, prays for dismissal of the suit. The court below considered the question and found that it is a dispute coming within the ambit of Section 100 of the Co-operative Societies Act and further it is barred in the light of Rule 90 of the Co-operative Societies Rules where Rule 90 reads as : where any claim is preferred to or any objection is made to WPC9451/08 2 the attachment of any property attached under these rules on the ground that such property is not liable to such attachment the sale officer shall investigate such claims or objections and dispose of it on merits. It is also provided that against such a decision one can approach the Civil court with a suit within a period of six months. The learned counsel would contend that Rule 90 is not mandatory. 3. I do not agree with the submissions of the counsel for the reasons that the right to investigate will arise only when a claim is preferred. Section 100 clearly bars jurisdiction of the Civil Court. When a remedy is provided under Rule 90 of the Co- operative Societies Rules to a person who is aggrieved by an act of a sale officer he has to resort the same and the rules also makes it very clear that against such an order a suit will lie. But it has to be filed within six months. So when a statute provides a remedy for the party and there is an express provision such as Section 100 regarding the bar of the civil court and when the Rule itself provides that the suit can be instituted only after approaching the sale officer by way of a claim, by twisting the fact one cannot approach the Civil Court for a remedy of WPC9451/08 3 injunction and therefore, I am in perfect agreement with the learned Munsiff holding that the suit is not maintainable. It is only a pure question of law and it can be considered when the maintainability question is raised by the defendant as envisaged under Order 14 Rule 2 CPC for the reason that it is not a mixed question of fact and law, but a pure question of law which can be dealt with as a preliminary point after the amendment of the Civil Procedure Code in 1976. Therefore, the writ petition lacks merits and dismissed. M.N.KRISHNAN, JUDGE csl