Dismissed

Marykutty Thomas v. the Cherthala Co-Operative Urban Bank LTD.NO.2655

Kerala HC1 Nov 2013OP(C)/2965/2013

Case brief

AI extract

What is this about?

Respondent challenged the opinion that auction purchaser must wait for disposal of the appeal to condone delay and appeal on merits before moving for delivery of mortgaged property. Court stays further proceedings pending appellate court's decision.

What did the court decide?

Further proceedings in E.A. No. 102 of 2013 kept in abeyance until application to condone delay and appeal are disposed of.

Marykutty Thomas Vs the Cherthala Co-Operative Urban… — Execution and Attachment | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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FRIDAY, THE 1ST DAY OF NOVEMBER 2013/10TH KARTHIKA, 1935

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OP(C).No. 2965 of 2013 (O)

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(E.A.NO.382/2011 IN FILE NO.1032/1997 OF THE ADDITIONAL MUNSIFF'S COURT, CHERTHALA)

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PETITIONERS :

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1. MARYKUTTY THOMAS

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W/O. THOMAS, PULIKKAPARAMBIL, CHERTHALA EAST MURI KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT.

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2. EALIESWA

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W/O. ULAHANNAN, PULIKKAPARAMBIL, CHERTHALA EAST MURI KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK ALAPPUZHA DISTRICT.

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BY ADVS.SRI.S.MANU

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SMT.SHAMEENA SALAHUDHEEN

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RESPONDENT/RESPONDENT :

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THE CHERTHALA CO-OPERATIVE URBAN BANK LTD.NO.2655 REP. BY ITS SECRETARY, CHERTHALA P.O. ALAPPUZHA DISTRICT-688524.

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R-R1 BY ADV. SRI.J.OM PRAKASH

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2965 of 2013 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : COPY OF THE ORDER OF THE ADDITIONAL MUNSIFF, CHERTHALA IN EA NO.382/2011 IN FILE NO.1032/1997.

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P2 : COPY OF THE PETITION FOR DELIVERY OF PROPERTY FILED BY THE RESPONDENT.

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P3 : COPY OF THE CIRCULAR NO.24/2012 ISSUED BY THE REGISTRAR OF COOPERATIVE SOCIETIES, THIRUVANANTHAPURAM.

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P4 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.

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RESPONDENT(S)' EXHIBITS: NIL

TRUE COPY

PA TO JUDGE

SCL.

P.N. RAVINDRAN, J.

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O.P.(C) No.2965 of 2013

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Dated this the 1^st day of November, 2013

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JUDGMENT

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The first petitioner had availed a loan from the respondent bank. The second petitioner is a surety to the said loan transaction. The loan was also secured by a mortgage of an item of immovable property belonging to the second petitioner. When the petitioners defaulted the repayment of the loan, the bank instituted arbitration proceedings wherein an award was passed on 2.9.1997. When the award was not satisfied, the bank filed E.P.No.16 of 2009 in the Court of the Additional Munsiff of Cherthala. In that execution petition, the mortgaged property was brought to sale and sold on 25.8.2011 and purchased by the bank for the sum of Rs.2,50,800/-. The petitioners thereupon filed E.A.No.382 of 2011 under order XXI rule 90 of the Code of Civil Procedure to set aside the sale and that application was dismissed by Ext.P1 order passed on 14.11.2012. Aggrieved thereby, the petitioners have filed C.M.A.No.28 of 2012 in the Court of the Subordinate Judge of Cherthala accompanied by an application to condone the delay of 16 days in filing the appeal. In

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O.P.(C) No.2965 of 2013

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the meanwhile, the respondent/auction purchaser filed E.A. No.102 of 2013 in the Court of the Additional Munsiff of Cherthala for delivery of the property sold in auction on 25.8.2011. In this original petition filed under Article 227 of the Constitution of India, the petitioners pray for an order directing the Court of the Additional Munsiff of Cherthala to keep further proceedings in E.A.No.102 of 2013 in abeyance till the disposal of C.M.A.No.28 of 2012 by the Court of the Subordinate Judge of Cherthala.

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I heard Sri. S. Manu, learned appearing counsel for the petitioners and Sri.J.Omprakash, learned counsel appearing for the respondent. The pleadings and the materials disclose that challenging Ext.P1 which is an appealable order, the petitioners have filed C.M.A.No.28 of 2012 in the Court of the Subordinate Judge of Cherthala along with an application to condone the delay of 16 days in filing the appeal. The appellate court is yet to consider the application to condone the delay as also the appeal on the merits. The award in the instant case was passed on 2.9.1997. The respondent took steps to execute the award only in the year 2011, more than a decade after the award was passed. In execution of the award, an item of immovable property belonging to the second petitioner was brought to

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O.P.(C) No.2965 of 2013

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sale, sold and purchased by the bank. The petitioners have in the original petition as well as in the appeal filed in the court below contended that they are entitled to the benefits flowing from Circular No.24 of 2012 dated 23.6.2012 issued by the Registrar of Cooperative Societies and therefore the sale held on 25.8.2011 is liable to be set aside. Such being the situation, as the appellate court is yet to consider the appeal on the merits as also the application to condone the delay and the relief claimed is on the basis of a circular issued by the Registrar of Co-operative Societies, extending concessions to persons like the petitioners who have availed loan from Co-operative institutions, I am of the opinion that the respondent/auction purchaser should await the outcome of the appeal before moving for delivery of the property purchased by it. I accordingly dispose of the original petition with the following conditions:

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The Court of the Subordinate Judge of Cherthala shall hear and dispose of the application filed by the petitioners to condone the delay in filing C.M.A.No.28 of 2012 which arises from the order dated 14.11.2012 in E.A.No.382 of 2011 on the file of the Court of the Additional Munsiff

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O.P.(C) No.2965 of 2013

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of Cherthala expeditiously.

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Depending on the outcome of the said application, the court below shall consider the appeal on the merits and dispose it of expeditiously and in any event within an outer limit of two months from the date on which the orders are passed on the application to condone the delay.

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Further proceedings in E.A.No.102 of 2013 on the file of the Court of the Additional Munsiff of Cherthala shall be kept in abeyance till the application to condone the delay/appeal are disposed of.

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Sd/-

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P.N. RAVINDRAN JUDGE

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Scl.

Marykutty Thomas v. the Cherthala Co-Operative Urban Bank LTD.NO.2655

Case brief

What is this about?

What did the court decide?

Marykutty Thomas v. the Cherthala Co-Operative Urban Bank LTD.NO.2655

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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