SARASWATHI Vs. MATHEVAN PILLAI

JUDGEMENT

(1.) The point that arises for decision in this Writ Petition, filed under Article 227 of the Constitution of India, is whether the award passed by a Joint Registrar of Chits, Tamil Nadu State, under the provisions of the Chit funds Act, 1982 (Central Act 40 of 1982) (hereinafter referred to as the Act) can be executed by a civil court in Kerala.

(2.) The brief facts of the case are the following: The petitioners are judgment debtors 1 and 2 in EP No.24/98 in ARC No.24/97 on the files of the Sub Court, Neyyattinkara. The 1st respondent herein is a foreman, conducting chit business in Tamil Nadu. Petitioners 1 and 2 and others were the subscribers/sureties for the chit amount. Since the subscribers failed to pay the amount due under the chits, the 1st respondent moved the Assistant Registrar of Chits, Marthandam, Tamil Nadu, under the provisions of the Act, by filing ARC No.24/97 and obtained an award in his favour. He filed EP before the Sub Court, kuzhithurai to execute the said award. When an EP is filed for execution of the award, by virtue of the provisions of Section 71 of the Act, the same has to be executed in the same manner as a decree of Sub Court. In other words, for the purpose of execution, the award shall be deemed to be a decree of Sub Court, Kuzhithurai. The first respondent moved for transfer of the said decree to Sub Court, Neyyattinkara under Rules 5 and 6 of Order XXI of the CPC. The award was transferred to Sub Court, Neyyattinkara. The first respondent filed EP.No.24/98 to execute the award by attachment and sale of the properties of the judgment debtors. But, the judgment debtors raised a preliminary objection that since the Chit Funds Act, 1982 is not enforced in the State of Kerala the Sub court, Neyyattinkara has no jurisdiction to execute the award of the Joint Registrar, Marthandam, Tamil Nadu. The said preliminary objection was upheld by the Sub court and the EP was dismissed, relying on the decision of this Court in Krishnamoorthy v. Khaleel Rahman (1996 (2) KLT 788). The 1st respondent filed CRP No.2766/01, challenging the said order, before this Court. This Court allowed the CRP by order dated 18.03.2003, holding that the decision in Krishnamoorhty's case (supra) has no application to the facts of the case. The Sub Court was directed to take a fresh decision in the matter, taking note of the contentions of both sides. Pursuant to the remand, the Sub Court, Neyyattinkara, ignoring the objections raised by the petitioners, ordered to proceed with the sale proceedings by setting the proclamation and taking further steps. The said order is produced as Ext.P1. This Writ Petition was filed, challenging Ext.P1.

(3.) The learned Single Judge, who heard the Writ Petition, after noticing the contentions and adverting to the decisions cited at the bar, felt that it will be appropriate that the Writ Petition is heard by a Division Bench. The learned Single Judge noticed the probable interpretation of Sub-section (3) of section 39 CPC and also the decision of this Court in Sankar Singh v. Secretary, Hosdurg Housing Co-operative Society (1996 (2) KLJ 70). The observation in Krishnamoorthy's case (supra) that in the absence of enforcement of the Act in the State of Kerala, the civil courts cannot treat the orders of the Joint Registrar under the Act as a decree of the civil court and they cannot be executed was also adverted to. In the above background of uncertainty of the interpretation to be given to Sub-section (3) of Section 39 CPC, the Writ Petition was referred to the Division Bench.