IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 25425 of 2005(B) ---------------------------------------- PETITIONER: -------------------- MADHAVAN, AGED 70, S/O.SANKU, THAIKOOTTATHIL, PATTANAM MURI, VADAKKEKARA VILLAGE, PARUR TALUK. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENTS: ------------------------- 1. CHITTATTUKARA PANCHAYATH SERVICE CO-OPERATIVE BANK, NO.1443, PALLAMTHURUTH, NORTH PARUR P.O., PIN-683 513, REPRESENTED BY ITS SECRETARY. 2. SPECIAL SALE OFFICER, MANNAM, SCB LTD NO.E-277 GROUP, OFFICE OF THE ASSISTANT REGISTRAR, CO-OPERATIVE SOCIETIES (GENERAL)NORTH PARUR. 3. SASIDHARAN, AGED ABOUT 65, S/O.KUTTAN, MAKKALA VEETTIL, CHERIYAPALLAMTHURUTHU MURI, PARAVUR VILLAGE, PARAVUR TALUK, NORTH PARUR P.O. 4. DAYALU, AGED 70, D/O.KUTTAN, MAKKALA VEETTIL, CHERIYAPALLAMTHURUTHU MURI, PARAVUR VILLAGE, PARAVUR TALUK. BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN - R2 BY ADV. SMT.K.V.RESHMI - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25425/2005 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PRELIMINARY JUDGMENT DTD. 21/02/1998 PASSED N O.S.NO.595 OF 1994 ON THE FILE OF THE SUB COURT, NORTH PARUR. EXT.P2; COPY OF THE PRELIMINARY DECREE DTD. 21/02/1998 PASSED IN O.S.NO.595 OF 1994, ON THE FILE OF THE SUB COURT, NORTH PARUR. EXT.P3: COPY OF THE SALE DEED EXECUTED IN THE NAME OF THE PETITIONER. EXT.P4: COPY OF THE SALE DEED EXECUTED IN THE NAME OF THE PETITIONER. EXT.P5: COPY OF THE JUDGMENT DTD. 30/09/2002 PASSED IN A.S.NO.22 OF 1999. EXT.P6: COPY OF THE JUDGMENT DTD. 14/11/2003 PASSED IN S.A.NO.34 AOF 2003. EXT.P7 AND PI(A): COPY OF THE COMMISSION REPORT DTD. 13/2/2004 AND THE SKETCH. EXT.P8: COPY OF THE NOTICE DTD. 16/08/2005. EXT.P9: COPY OF THE APPLICATION FILED UNDER RULE 90 OF THE KERALA CO-OPERATIVE SOCIETIES RULES BEFORE THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES (GENERAL), NORTH PARUR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.25425 of 2005-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of July, 2008. JUDGMENT 1.Petitioner, respondents 3 and 4 and others held certain property in common. That was put to partition in O.S.595/1994 of the Principal Sub Court, N.Parur. Resultantly, a final decree has been passed in that suit. That has been confirmed by the superior courts also. 2.During the pendency of the aforesaid suit for partition, respondents 3 and 4 created a mortgage of that property in favour of the first respondent, a co-operative bank and obtained a loan. On account of default, the bank proceeded for recovery and this has led to execution WP(C)25425/05 -: 2 :- proceedings. 3.In the light of the decree for partition, it cannot be disputed that the execution proceedings as against respondents 3 and 4 on account of the mortgage created by them has to be confined, even on equitable considerations, to be only as against the property (share) allotted to them as per the final decree in the aforesaid suit. The petitioner has, therefore, filed Ext.P9 taken on record today by order on I.A.8358/2008. By that petition, he has invoked Rule 90 of the KCS Rules, 1969 and has filed a claim agitating the aforesaid contentions. For the foregoing reasons, this writ petition is ordered directing that Ext.P9 will be taken up, considered and disposed of by the competent authority in the light of what is stated above and in accordance with law. Pending such consideration, it is further directed that the execution proceedings referable to the loan transactions of respondents 3 and 4 shall stand confined to be against the share allotted to WP(C)25425/05 -: 3 :- them in the final decree in the aforesaid suit. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/100708