IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 17728 of 2009(O) -------------------------- AGAINST THE ORDER IN EP 78/2008 IN ARC.1448/2004 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): ------------------------- P.GOPALAN,S/O.PALANISWAMI CHETTIAR, VANIYAMKULAM ANGADI, VANIYAMKULAM POST, OTTAPPALAM TALUK, PALAKKAD DIST. BY ADV. MR.C.K.RAMAKRISHNAN RESPONDENT(S): --------------------------- 1. P.VIJAYAKUMAR, S/O.MADHAVAN, PARAKKOTTIL HOUSE, VANIYAMKULAM POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. THE MANAGER, OTTAPPALAM CO.OP.URBAN BANK LTD.NO.F.16,OTTAPPALAM POST, OTTAPPALAM TALUK. R1 BY ADVS. MR.M.V.BOSE, SMT.NISHA BOSE. R2 BY ADV.MR.VINOD MADHAVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17728/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 26/05/2008 IN S.L.P.13370/08. P2: COPY OF THE ORDER DTD. 18/07/2008. P3: COPY OF THE E.P.78/2008 DTD. 08/07/2008 BEFORE THE HON'BLE SUB COURT, OTTAPPALAM. P4: COPY OF THE OBJECTION PETITION DTD. NIL. P5: COPY OF THE ADDITIONAL OBJECTION DTD. 3/11/2008. P6: COPY OF THE OBJECTION DTD. 11/02/09 BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.17728 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 22nd July, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To direct the Sub Court to hear the maintainability of the case at first and pass an order and then only that the Court have power to proceed with execution petition. 2. To grant such other reliefs as and when prayed for. 2. Petitioner is a defaulter to the 2nd respondent-Bank in respect of a loan availed and pursuant to arbitration proceedings initiated an award was passed. That award was executed before the civil court and pursuant to that award the Registrar conducted a sale after complying with the formalities and the first respondent in auction purchased the property. After getting sale certificate he moved the civil court for delivery of the property. Petitioner on receiving notice in the proceedings appeared and filed objections mainly on two grounds, one, the civil court has no jurisdiction to execute the award and the second, he has filed a Special Leave Petition contending that no copy of the award had been served on him as mandated by the rules. The execution court without considering the maintainability of the petition in the light of his objections is proceeding with further W.P.C.No.17728/09 - 2 - steps to deliver the property is the grievance canvassed for the reliefs claimed in the petition invoking the supervisory jurisdiction vested by this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. Learned counsel for the petitioner reiterated before me the grounds/objections canvassed before the executing court to contend that the execution proceedings pursued before the civil court by the first respondent/ auction purchaser is not maintainable and the execution court was not justified in entertaining a proceeding at the instance of the first respondent for delivery of the property. Learned counsel for the 2nd respondent-Bank contended that the Kerala Co-operative Societies Act and Rules specifically provides for execution of the decree through the civil court after sales certificate is issued pursuant to sale of a property on the basis of an award passed in arbitration proceedings as covered by the Act. So far as the other challenge raised that a Special Leave Petition has been filed before the apex court, it is submitted that in the absence of any stay or order from the apex court, the effect of the decree or sale certificate continues as such and it has to be given effect to in accordance with law. 3. Once a sale certificate is issued by the Registrar, it has the W.P.C.No.17728/09 - 3 - effect of a decree and there need not be any doubt it can be executed as a decree passed by the court. Such being the position of law, the civil court if it is called upon to execute a sale certificate, then necessarily it has to execute it as if it were a decree passed by the court. That is the mandate covered by Section 76 of the Kerala Co- operative Societies Act and so much so, the first ground canvassed by the learned counsel that the civil court has no jurisdiction to execute the sale certificate deserve to be taken note of only for its rejection. The second ground canvassed by the learned counsel that a Special Leave Petition has been filed against the judgment rendered by this court in Writ Appeal filed by him against the dismissal of his Writ Petition contending that copy of the award passed by the Arbitrator has not been issued to him is a circumstance forbidding or interdicting the execution court from executing the sales certificate also cannot be appreciated. Issue of notice on the S.L.P. preferred by the petitioner will not constitute that the leave has been granted by the apex court. If only leave is granted, then only it can be stated that an appeal is pending before the apex court and the order of the decree under appeal has not attained finality. That is not the case here. In Kunhayammed v. State of Kerala (AIR 2000 S.C. 2587) W.P.C.No.17728/09 - 4 - the apex court considering the above aspect has observed thus: “In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.” That being the position of law, the challenge raised by the petitioner on the basis of the S.L.P. preferred in which he has no case that leave has been granted by the apex court cannot in any way prevent the auction purchaser from executing the sales certificate which has been validly obtained by him pursuant to the purchase of the property under auction. The Writ Petition lacks merit and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.17728/09 - 5 -