IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 OP(C).No. 1135 of 2010(O) -------------------------------------- RP.201/2009 OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. ARC.185/2000 of JOINT REGISTRAR , KOZHIKODE DISTRICT. .................... PETITIONER ------------------- E.K.BALACHANDRAN,CHALIL VEEDU, PYTHOTH, PERAMBRA P.O.,KOZHIKODE BY ADV. SRI.P.N.MOHANAN SMT.I.VINAYAKUMARI RESPONDENT(S): --------------------------- 1. MEPPAYUR CO-OPERATIVE HOUSING SOCIETY LTD NO.1932,REP.BY SECRETARY,MEPPAYUR P.O., KOZHIKODE. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G),KOZHIKODE R1 BY ADV. SRI.K.LAKSHMINARAYANAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO. 1135/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ARBITRATION CASE ARC 185/2000 FILED BEFORE THE 2ND RESPONDENT. P2:- COPY OF THE AWARD DTD. 9.10.2000 OF THE ARBITRATOR. P3:- COPY OF THE RUNNING ACCOUNT MAINTAINED BY THE FIRST RESPONDENT. P4:- COPY OF THE CALCULATION OF THE INTEREST FROM THE DATE OF EXT. P2 AWARD AND THE PAYMENT MADE. P5:- COPY OF THE JUDGMENT IN OP.28290/2002 DTD 17.10.2002 . P6:- COPY OF THE JUDGMENT IN WP(C) NO.31954/07 DTD. 8.1.2008. P7:- COPY OF THE JUDGMENT IN WP(C) 23000/08 DTD. 13.8.2008. P8:- COPY OF THE ORDER OF THE TRIBUNAL RP. 201/2009 DTD. 29.9.2010. P9:- COPY OF THE CIRCULAR 49/2010 DTD. 20.8.2010 OF THE REGISTRAR OF CO- OPERATIVE SOCIETIES. P10:- COPY OF THE NOTICE OF THE SALE PROCLAMATION. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1135 of 2010 -------------------------------------- Dated this the 26th day of August, 2011. JUDGMENT Ext.P10, notice under Rule 66 of Order 21 of the Code of Civil Procedure (for short, “the Code”) is under challenge in this proceeding. Petitioner is the judgment debtor in E.P.No.88 of 2005 of the court of learned Munsiff, Perambra where the award in A.R.C.No.185 of 2000 is being executed. The property of petitioner is being brought up for sale. At that stage petitioner approached this Court with a contention that as revealed from Ext.P4, he has already made payment of `1,81,286/- though the loan amount was only `60,000/-. According to the petitioner, in view of Ext.P9, circular issued by the Registrar of Co- operative Societies by virtue of the power conferred on him under Section 66A of the Kerala Co-operative Societies Act (for short, “the Act”), respondent cannot realize anything in excess of thrible the loan amount. It is argued that petitioner has already paid more than `1,80,000/- and hence respondent is not entitled to realize any further amount and that the claim of the respondent for a further sum of `99,629/- cannot be sustained. 2. Learned counsel for respondent has contended that Section 66A of the Act has no application and placed reliance on the decision in Kallettumkara Service Co-operative Bank v. Registrar of Co- operative Societies (2005 (3) KLT 483). It is also contended by learned counsel that Ext.P9, circular has no application to housing loans and long term OP(C) No.1135/2010 2 loans availed from the respondent. 3. Ext.P9, circular according to the petitioner prevents the respondent from realizing any amount more than thrible the loan amount. The question is whether Ext.P9, circular would stand in the way of the executing court executing the award. According to the petitioner, Section 66A of the Act has been given retrospective effect from 27.09.2001 as per GO(P) No.65/06/Co-op. dated 27.03.2006. Now the question is whether Ext.P9, circular would prevent the executing court from executing the award. Assuming that the award was passed against the circular (Ext.P9), remedy of petitioner was to challenge the award. Executing court cannot go behind the decree. Section 66A of the Act does not say that the circular by virtue of the said provision would apply notwithstanding any award passed by the Registrar of Co-operative Societies. Nor does it affect the award already passed. In that view of the matter I am not inclined to think that the circular prevented the executing court from executing the award so far as it stands. Therefore the contention of petitioner cannot be sustained. 4. If on other grounds petitioner is entitled to the benefit of circular it is open to the petitioner to approach the respondent and make a request in that regard. With the above observation Original Petition is closed. THOMAS P.JOSEPH, Judge. cks