S.N.D.P. Branch No.3715 vs Nil
2021 Latest Caselaw 9775 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

  TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                    OP(C).No.446 OF 2020

  AGAINST THE ORDER DATED 31.1.2020 IN E.A.NO.323/2019 IN
 E.P.NO.235/2011 IN O.S.NO.87/2007 OF SUB COURT,ALAPPUZHA

PETITIONER/ 1ST JUDGMENT DEBTOR/ 1ST DEFENDANT:

            S.N.D.P. BRANCH NO.3715,
            KOMANA, REPRESENTED BY ITS SECRETARY, UTHAMAN,
            AGED 69 YEARS, S/O.VELAYUDHAN, KOMANA,
            AMBALAPUZHA, ALAPPUZHA DISTRICT

            BY ADV. SRI.K.RAKESH
RESPONDENTS/ RESPONDENTS/ PLAINTIFF & DEFENDANTS 2 & 3/
AUCTION PURCHASER:

      1     M.P.AMMINIKKUTTY,
            AGED 61 YEARS, W/O.V.N.HARIDAS, MANIMANDIRAM,
            KOMANA, AMBALAPUZHA, ALAPPUZHA DISTRICT, PIN-
            688561

      2     RAJAN,
            S/O.SUKUMARAN, PRESIDENT S.N.D.P BRANCH NO.3715,
            AMBALAPUZHA, RESIDING AT SREEBHAVAN, KOMANA,
            AMBALAPUZHA, ALAPPUZHA DISTRICT, PIN-688561

      3     RADHAKRISHNAN,
            S/O.PADMANABHAN, SECRETARY, S.N.D.P BRANCH
            NO.3715, AMBALAPUZHA, RESIDING AT THAIPARAMBIL
            HOUSE, KOMANA, AMBALAPUZHA, ALAPPUZHA DISTRICT,
            PIN-688561

      4     HAREESH B RAJ,
            AGED 41 YEARS,S/O.BABURAJ, USHA,
            THATHAMPALLY.P.O, ALAPPUZHA DISTRICT, PIN-688013

            R1 BY ADVS. SMT.C.G.BINDU
                        KUM.K.J.SARANYA RAJ
                        SMT.AJITHA C.G.
            R3 BY ADV. SRI.MATHEW JAMES
            R4 BY ADVS. SRI.J.OM PRAKASH
                        SRI.T.G.SUNIL (PRANAVAM)
                        SRI.C.X.ANTONY BENEDICT
     THIS  OP   (CIVIL)   HAVING  BEEN   FINALLY HEARD ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(C)No.446/2020

                                          -:2:-




                     Dated this the 23rd day of March,2021

                                 J U D G M E N T

This original petition is filed by the first

judgment debtor in E.P.No.235/2011 in O.S.

No.87/2007 on the file of Sub Court, Alappuzha,

challenging impugned order dated 31.01.2020 passed

by the court below dismissing E.A.No.323/2019 filed by him seeking dismissal of Execution

Petition.

2. The court below by the impugned order

noticed that inasmuch as execution proceedings

were not pending, E.A.No.323/2019 itself was not

maintainable and accordingly, dismissed the

petition.

3. The first respondent in this original

petition obtained an award dated 10.09.2007 passed

by the Lok Adalath for realisation of money from

respondent Nos.2 and 3. Respondent Nos.2 and 3 are

the office bearers of SNDP Branch No.3715,

Ambalapuzha. E.A.No.323/2019 was filed by the

present Secretary of the above said branch. The

award passed by the Lok Adalath shows that a

charge was created over 8.80 Ares of property O.P.(C)No.446/2020

owned by the said Branch.

4. The contention raised by the petitioner

is that an award creating charge over the property

could not have been passed inasmuch as the branch

had not taken sanction either from Director Board

of SNDP Yogam or from SNDP Union Council.

5. In short, the contention that was raised

before the execution court was to the effect that

the award sought to be executed was illegal and

unenforceable under law.

6. The impugned order does not indicate that

these contentions were considered by the court

below.

7. I heard the learned counsel for the

petitioner as well as respondents.

8. The fourth respondent already purchased

the property sold in auction. The property is yet

to be delivered by the execution court.

9. The grievance expressed by the learned

counsel for the petitioner is to the effect that

an erroneous order was passed by the court below

assuming that an application under Section 47 of

the code of Civil Procedure, 1908, will not lie

when execution proceedings were not pending. The O.P.(C)No.446/2020

view taken by the court below is not sound.

10. I am of the opinion that the court below

should have applied its mind the contentions

raised in E.A.No.323/2019 and passed orders on

merits.

11. After hearing the submissions made by the

learned counsel on either side, I am of the

opinion that the legal validity of award cannot be

challenged by the petitioner before the execution

court since the Branch represented by him is a

party to the award. The remedy, if any, open to

the petitioner is to challenge the validity of the

award in appeal or appropriate forum as the case

may be. Admittedly, no such challenge was made

before any forum other than before the execution

court.

12. The nature of contentions raised by the

petitioner attacking executability of the award

does not go to the root of the matter and cannot

therefore be raised before the same court which is

called upon to execute the award.

13. For the foregoing reason, I am of the

opinion that the impugned order is not worth

interfering in this original petition. O.P.(C)No.446/2020

In the result, original petition fails and it

is dismissed.

All pending interlocutory applications will

stand closed.

Sd/-

                                   T.V.ANILKUMAR,JUDGE

DST                                                 //True copy/

                                                   P.A.To Judge
 O.P.(C)No.446/2020






                         APPENDIX
PETITIONER'S EXHIBITS:



EXHIBIT P1           TRUE COPY OF THE PETITION IN E.A

NO.323/2019 IN E.P.NO.235/2011 IN O.S NO.87/2007 OF THE SUB COURT, ALAPPUZHA

EXHIBIT P2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP(C)NO.68/2020 DATED, 20.1.2020

EXHIBIT P3 TRUE COPY OF THE ORDER DATE 31.1.2020 IN E.A. NO.323/2019 IN E.P.NO.235/2011 IN O.S NO.87/2007 OF THE SUB-JUDGE, ALAPPUZHA

RESPONDENTS' EXHIBITS: NIL