IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 WP(C).NO. 220 OF 2010(O) ------------------------ AGAINST THE ORDER DATED 22/12/2009 IN EP 34/08 IN ARC.225/2004 OF SUB COURT, QUILANDY .................... PETITIONER(S): --------------- K.HARIDASAN, HARIPURAM, (PO) PALAYADNADA, (VIA) IRINGAL, KOZHIKODE DISTRICT. BY ADV. SRI.C.VALSALAN SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): --------------- V.K.ACHUTHAKURUP, VIDYA BHAVAN, PALAYAD NADA (PO), KARUVANCHERRY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE SALE CERTIFICATE IN FAVOUR OF THE RESPONDENT DATED 21.4.2008. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDERS OF THE KERALA STATE FARMERS DEBT RELIEF COMMISSION DATED 15.11.2007. EXHIBIT P3 TRUE COPY OF THE INTERIM ORDERS OF THE KERALA STATE FARMERS DEBT RELIEF COMMISSION DATED 26.3.2008. EXHIBIT P4 TRUE COPY O THE JUDGMENT DATED 17.11.2008 IN W.P(C) NO.27195 PASSED BY THIS HONOURABLE COURT. EXHIBIT P5 TRUE COPY OF THE DISCHARGE CERTIFICATE OF PETITIONER ISSUED BY THE MEDICAL COLLEGE HOSPITAL CALICUT. EXHIBIT P6 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P7 TRUE COPY OF THE I.A. FOR STAY IN APPEAL FILED BY THE PETITIONER BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P8 TRUE COPY OF THE I.A. CONDONE DELAY IN APPEAL FILED BY THE PETITIONER BEFORE THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P9 TRUE COPY OF THE E.P. FILED BY THE RESPONDENT BEFORE THE SUB COURT, KOYILANDY. EXHIBIT P10 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER BEFORE THE SUB COURT, KOYILANDY. EXHIBIT P11 TRUE COPY OF THE AMENDMENT PETITION FILED BY RESPONDENT BEFORE THE SUB COURT, KOYILANDY. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 22.12.2009 IN E.P. NO.34 OF 2008 IN ARC NO.225 OF 2004 PASSED BY THE SUB COURT, KOYILANDY. EXHIBIT 13 TRUE COPY OF THE NOTICE DATED 4..8.2008 ISSUED BY THE JOINT REGISTRAR. EXHIBIT P14 TRUE COPY OF THE PETITION ALONG WITH DELAY PETITION FILED BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETY. EXHIBIT P15 TRUE COPY OF THE NOTICE DATED 9.3.2010 BY THE JOINT REGISTRAR. RESPONDENT'S EXHIBITS: NIL ------------------------------------- THOMAS P.JOSEPH, J. ==================================== W.P(C) No.220 of 2010 ==================================== Dated this the 23rd day of June, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P12, order rejecting the objection filed by petitioner-judgment debtor and directing delivery of property by 06.01.2010. Petitioner was indebted to the Kozhikode District Co-operative Bank (for short, “the Bank”) which obtained an award against petitioner for payment of the amount with interest. Thereafter property of petitioner was brought up for sale under the Co-operative Societies Act (for short, “the Act”) on 21.8.2007 and the property was purchased by the respondent. In the meantime petitioner approached the Kerala State Farmers Debt Relief Commission (for short, “the Commission”) with an application based on which the Commission passed Ext.P2, order dated 15.11.2007 to maintain status quo. That order was addressed to the General Manager of the Bank. Thereafter Joint Registrar of Co-operative Societies issued Ext.P1, sale certificate on 21.04.2008 according to the petitioner in violation of Ext.P2, order dated 15.11.2007. Pursuant to that sale certificate respondent launched execution in the court of W.P(C) No.220 of 2010 -: 2 :- learned Sub Judge, Koyilandy. Petitioner preferred his objection to the execution which as per Ext.P12, order was rejected and delivery of property was ordered. Petitioner filed W.P(C) No.27195 of 2008 in this Court challenging sale of property by the authorities under the Act on various grounds. This Court observed that issues raised are on disputed facts which have to be settled otherwise, in accordance with the provisions of law, petitioner has an alternative efficacious remedy under the Act and Rules to challenge the impugned sale and execution proceedings in the court of learned Sub Judge and closed the Writ Petition as per Ext.P4, judgment reserving that right of petitioner and directing that respondent shall not alienate or encumber the property for a period of three months to facilitate petitioner move appropriate authority under the Act and Rules. Pursuant to that order petitioner has filed preferred Ext.P6, appeal to the Co-operative Tribunal (for short, “the Tribunal”) challenging sale of property in favour of respondent on several grounds including that sale was conducted without notice to the petitioner. Petitioner has also filed an application for stay of execution proceedings (Ext.P7). I am told that no orders have been passed on Ext.P7. Nor has Ext.P6, appeal been disposed of. Petitioner also preferred W.P(C) No.220 of 2010 -: 3 :- Ext.P14, application to the Joint Registrar under Rule 82 of the Rules requesting to set aside the order on similar grounds. In the meantime petitioner has submitted a representation before the Minister for Co-operative Societies complaining about illegality in the sale of property. The Minister on his part forwarded that complaint to the Joint Registrar for consideration regarding which petitioner has been given Ext.P13, notice. I am told that respondent also has been issued with notice by the Joint Registrar on the said petition. Joint Registrar has not disposed of the said petition and representation. Grievance of the petitioner is that in the meantime respondent is proceeding with execution pursuant to Ext.P1, sale certificate and is attempting to take delivery of the property. If before that happens petitioner's challenge before the Tribunal and Joint Registrar as aforesaid is not considered, petitioner will be put to irreparable loss and injury. 2. When this Writ Petition came up for admission this Court directed the petitioner to deposit a sum of Rs.2,60,000/- in the executing court which the petitioner has complied. Petitioner seeks a stay of delivery of the property pursuant to Ext.P12, order. Learned counsel requests, in the alternative that delivery W.P(C) No.220 of 2010 -: 4 :- of the property may be stayed until the Tribunal and Joint Registrar disposed of the appeal and representation pending before them challenging validity of the sale and Ext.P1, sale certificate. Learned counsel has also expressed willingness of petitioner to pay all amount due to the respondent and settle the matter. 3. Learned counsel for respondent contends that none of the argument advanced by petitioner need be considered since challenge in this Writ Petition is only to Ext.P12, order of the executing court directing delivery of the property which is not shown to be suffering from any illegality or irregularity and hence this Court has to keep its hands off from the execution proceedings pursuant to Ext.P12, order. According to the learned counsel if at all proceedings pending before the Tribunal and Joint Registrar are disposed of in favour of petitioner, it is not as if he is without any remedy even if it is assumed that pursuant to Ext.P12, order the property in question is delivered over to the respondent. Learned counsel states that notwithstanding the sale and issue of sale certificate respondent was not able to take any income from the property which continues to be enjoyed by petitioner. W.P(C) No.220 of 2010 -: 5 :- 4. It is not necessary to go into the correctness of Ext.12, order in that it is not shown that the said order in itself suffered from any illegality or is vitiated by any other circumstance warranting interference by this Court. Now question before me is only whether Ext.P12 is to be stayed and if so until what time. 5. It is not disputed by the respondent also that proceedings initiated by the petitioner before the Tribunal and Joint Registrar and request for stay of execution are pending. It is also not disputed that pursuant to the order passed by this Court petitioner has already deposited Rs.2,60,000/- in the executing court whereby he has expressed his willingness to settle the matter with the respondent and pay off the amount due to the respondent. That offer, learned counsel for petitioner has reiterated before me and stated that if respondent is willing to settle the matter petitioner is prepared to pay reasonable amount to the respondent. It is open to the respondent to consider whether that offer of the petitioner could be accepted or not. I leave that matter there. 6. Having regard to the facts and circumstances of the case I am inclined to think that it will not be just and proper, also W.P(C) No.220 of 2010 -: 6 :- taking into account the fact that petitioner has already deposited Rs.2,60,000/- in the executing court to allow delivery of property for the time being and particularly as the proceedings initiated by petitioners are pending consideration before the Tribunal and Joint Registrar. Hence I am inclined to direct that proceeding for delivery of the property pursuant to Ext.P12, order will stand in abeyance for a period of three months from this day. Resultantly, the Writ Petition is disposed of in the following lines: (i) Delivery of property pursuant to Ext.P12, order will stand in abeyance for a period of three months from this day. (ii) It will be open to the petitioner to request the Tribunal and the Joint Registrar to dispose of the appeal and other proceedings pending before those authorities at the earliest. (iii) If petitioner makes any request before such authorities, such authorities shall decide the proceedings pending before them within three months from the date of request. (iii) Since the sum of Rs.2,60,000/- (Rupees W.P(C) No.220 of 2010 -: 7 :- Two Lakhs and Sixty thousand only) deposited by petitioner in the executing court remains without accruing interest I direct that the said amount be transferred to the Sub Treasury concerned to be kept in Fixed Deposit for a period of six months from this day in the name of learned Sub Judge. (iv) Learned Sub Judge shall decide as to the person entitled for the said amount in case parties enter into settlement regarding the matter and pursuant to that settlement sale of the property and Ext.P1 sale certificate are cancelled by the appropriate authority. I make it clear that the question whether sale and the consequent issue of sale certificate are legal and proper and are liable to be set aside are matters which the appropriate authorities shall decided untrammelled by any of the observation herein. THOMAS P. JOSEPH, JUDGE. vsv