PARAPPANANGADI CO OPERATIVE SERVICE BANK LTD Vs. SAINABA

JUDGEMENT

(1.) Question raised for a decision is whether, to an application under R. 95 of O.XXI of the Code of Civil Procedure (for short, "the Code") for delivery of property purchased in Court auction in execution of an award passed by the Arbitrator under the Kerala Co-operative Societies Act, 1969 (for short, "the Co-operative Societies Act"), period of limitation is governed by Articles 134 or 137 of the Limitation Act, 1963 (for short, "the Act") Petitioner is a Co-operative Service Bank constituted under provisions of the Co-operative Societies Act. Respondents availed loans from the petitioner. They defaulted repayment. Petitioner moved the arbitrator as provided under the Co-operative Societies Act and obtained awards for realisation of the amount due. Petitioner filed execution petitions in the Sub Court, Tirur along with copy of the awards and certificates as provided under S. 76(a) of the Co-operative Societies Act and proceeded against property of respondents. Property of respondents were sold in court auction and purchased by the petitioner, Sale certificates were issued to the petitioner. After one year of the sales becoming absolute, petitioner filed applications in the Sub Court, Tirur under R. 95 of O.XXI of the Code seeking delivery of properties. Learned Sub Judge held that the applications are barred by limitation as they are filed after one year of the dates on which the sales became absolute as provided under Art. 134 of the Act, refused to number the applications and dismissed the same. Those orders are under challenge.

(2.) The learned Senior Advocate for petitioner has contended that the award of the arbitrator as per S. 76(a) of the Co-operative Societies Act, is deemed to be a decree of the Civil Court only for the purpose of execution. It is argued that 'execution' is over when, in satisfaction of the deemed decrees property of respondents were sold in court auction and purchased by the petitioner. An application for delivery of property purchased in court auction is not 'execution' of the deemed decree. It is only for the limited purpose of the enquiry contemplated under S. 47 of the Code, and that too, by virtue of clause (b) of Explanation 11 to sub-s.(3) of S. 47 of the Code added by Act 104 of 1976 that all questions relating to delivery of possession of property purchased in court auction could also be deemed to be questions relating to the execution, discharge or satisfaction of the decree. S. 76(a) of the Co-operative Societies Act does not say that for any purpose other than execution the award is to be deemed to be a decree of the Civil Court, Art. 134 of the Act which deals with delivery of possession by a purchaser of immovable property at a sale in execution of a decree, therefore has no application as award of the arbitrator is to be deemed to be a decree of the civil court only for 'execution' (which according to the petitioner does not take in an application for delivery of property under R. 95 of O.XXI of the Code). Art. 136 of the Act also has no application as the said provision governs execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. Hence, in the absence of any other specific provision in the Act dealing with an application under R. 95 of O.XXI of the Code when in 'execution' of the deemed decree (here, the award) property is purchased in Court auction, it is Art. 137 which applies. That Article provides three years from the date on which the right to apply accrued. The right to apply for deli very of possession accrued when the auction sales in favour of petitioner were confirmed. The applications under R. 95 of O. XXI of the Code having been preferred within three years from the dates of confirmation of sales are within time. Learned Senior Advocate has referred me to the decisions in Tripunithura Peoples Co-operative Bank Ltd. v. Kunhan Thirupad & Anr.,1925 CLR 724 , D.S. Pillay v. Madappan Pillay,1950 KerLT 76 , Anto Mamkoottam v. Peruvanthanam Service Co-operative Bank, 1996 2 KerLT 962 , Mancheri Puthusseri Ahammed & Ors. v. Kuthiravattom Estate Receiver, 1996 6 SCC 185 , K.R. Lakshminarayan Rao v. New Premier Chemical Industries, 2005 9 SCC 354, Simon Varghese v. Kidangoor I.R.P.E Co-operative Society,2006 1 KerLT 27 (C. No. 37) and Jose Joseph v. Omanakutty Amma,2012 1 KerLT 625 .

(3.) The learned counsel for respondents contend that by a deeming fiction provided under S. 76(a) of the Co-operative Societies Act, award of the arbitrator is to be deemed to be a decree of the Civil Court. The award should be taken as equivalent to a decree of the Civil Court for all purposes including application of the Code and the law of limitation and hence purchaser/petitioner ought to have filed the applications under R. 95 of O.XXI of the Code within the period of limitation prescribed by Art. 134 of the Act. Since Art. 134 of the Act applied, taking recourse to the residuary Article (Art. 137) of the Act does not arise. Learned counsel have placed reliance on the decisions in B.P. Andre v. Supdt. Central Jail (Bhagwati), 1975 AIR(SC) 164 , M.V. Ali v. Kunjannamma Philipose,1975 KerLT 527 and Ayancheri Service Co-op. Bank v. Moideen, 1988 2 KerLT 1035 .