IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 OP(C).No. 295 of 2011(O) ------------------------------------- EP.NO.30/2009 IN ARC NO.139/2002 OF DISTRICT COURT, WAYANAD ...... PETITIONER:JUDGMENT DEBTOR: ---------------------------------------------------- JUDY 'D'SILVA, S/O. LATE JOSEPH 'D'SILVA AGED 58 YEARS, DISILVA ESTATE, RIPPON.P.O., MUPPAINAD VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): DECREE HOLDER: -------------------------------------------------------- THE WAYANAD DISTRICT CO-OPERATIVE BANK LIMITED, REPRESENTED BY ITS GENERAL MANAGER, KALPATTA, VYTHIRI TALUK, WAYANAD DISTRICT - 673 121. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.T.SANKARAN, J. ------------------------------ O.P(C).No.295 OF 2011 ------------------------------ Dated this the 21 st day of January, 2011 JUDGMENT The petitioner, the judgment debtor in ARC No.139 of 2002 on the file of the Court of the District Judge of Wayanad, challenges the order passed by the learned District Judge holding that it has jurisdiction to entertain the Execution Petition. The Award in ARC No.139 of 2002 was passed by the arbitrator, namely, the Joint Registrar(General) of Co-operative Societies under Section 70 of the Kerala Co-operative Societies Act. By the award, the petitioner is liable to pay a sum of Rs.8,01,608/- to the respondent. E.P.No.30 of 2009 was filed by the respondent before the District Court to execute the award. 2. The petitioner/judgment debtor filed an objection stating that the District Court has no jurisdiction. However, when the Execution Petition O.P(C).No.295 OF 2011 2 came up for hearing, the judgment debtor submitted that he is ready to pay the decree debt in instalments. The Executing Court granted instalment facility to the petitioner permitting him to pay the decree debt in instalments of Rs.50,000/- per month. The judgment debtor did not pay any of the instalments. After three months of default, on 6.11.2010, the judgment debtor submitted that he would pay the amount on 10.11.2010. The E.P. was posted to that date. However, the judgment debtor did not pay any amount. The Executing Court ordered to issue notice under Rule 37 of Order 21 of the Code of Civil Procedure. At that juncture, the judgment debtor filed OP No.833 of 2010 before this court pointing out the grievance that the learned District Judge did not consider the question of lack of jurisdiction raised by him. OP No.833 of 2010 was disposed of directing the learned District Judge to consider the objection regarding jurisdiction. O.P(C).No.295 OF 2011 3 3.The learned District Judge repelled the contention raised by the petitioner, relying on the decision in Bishop Dr.Mathews Mar Savarios v. Thankachan[(2001(1) KLT 932)]. In 2001(1) KLT 932, the learned Single Judge of this court held as follows: “From the above rulings it is clear that in spite of the fact that the Munsiff's Court and the Subordinate Judge's Court will have the jurisdiction to entertain and try a suit or dispute of civil nature subject to pecuniary and territorial jurisdiction,the District Court being the principal Court of original jurisdiction has got jurisdiction to entertain and try itself or make it over to a subordinate court having competent pecuniary jurisdiction even if it is lacking in territorial jurisdiction. xxx xxx xxx xxx xxx xxxx xxxx xxxx xxxx xx Merely because of the fact that the ordinary procedure of filing suits before the lowest court of competent jurisdiction is not followed, it cannot be contended that the institution of the suit before the District Court in this case is illegal. Therefore, the contention raised by the petitioner that the above suit filed before the District Court, Ernakulam is not maintainable for want of jurisdiction and therefore, the I Addl.District Court, Ernakulam to which the suit is made over by the District Judge also has no jurisdiction to entertain and try the suit and therefore, O.P(C).No.295 OF 2011 4 the order passed by the lower court appointing a receiver pending disposal of the suit is illegal and unsustainable, is of no force.” 4. The learned counsel for the petitioner submitted that in all similar cases, Execution Petitions are filed either before the Munsiff's Court or before the Subordinate Judge's Court depending upon the valuation of the proceedings. It is submitted that in this case, probably under the erroneous impression that it is an award passed under the Arbitration and Conciliation Act, the Execution Petition was filed before the District Court. 5. Whatever may be the reason for filing the Execution Petition before the District Court, it cannot be held that the District Court lacks jurisdiction to entertain the Execution Petition, in the light of the principles laid down in 2001(1) KLT 932. The Execution Petition was filed in 2009. O.P(C).No.295 OF 2011 5 On receipt of notice under Rule 22 of Order 21 of the Code of Civil Procedure, the petitioner appeared and prayed for instalment facility. The court granted that request. However, the petitioner did not pay any amount. Thereafter, he filed the Original Petition before this court challenging the proceedings before the Executing Court. The petitioner got all the benefits from the Executing Court and when it came to the fag end of the proceedings, he raised the contention which was apparently abandoned by him. The order passed by the learned District Court does not suffer from any illegality or error of jurisdiction. No grounds are made out for invoking the jurisdiction under Article 227 of the Constitution of India. The Original Petition is, accordingly, dismissed. K.T.SANKARAN, JUDGE. cms