Manappuram Chits India Limited v. Gopalakrishnan, Suresh Babu A.T., Geetha K.V.

OP(C) NO. 2516 OF 2022 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944** **OP(C) NO. 2516 OF 2022** **AGAINST THE ORDER/JUDGMENT IN UNNUMBERED EP /2022 OF MUNSIFF** **COURT, TIRUR** ## **PETITIONER/S:** MANAPPURAM CHITS INDIA LIMITED HAVING ITS ADMINISTRATIVE OFFICE AT 1ST FLOOR,KRISHNA TOWERS, ASWINI JUNCTION, THRISSUR. REPRESENTED BY ITS AUTHORIZED SIGNATORY., PIN - 680002 BY ADVS. LINDONS C.DAVIS E.U.DHANYA SWATHY A.P. HAFIZ C. JAINI RAJITH DAVIS ## **RESPONDENT/S:** 1 GOPALAKRISHANAN S/O.KRISHNAN, PANICHAKATHIL HOUSE, ALINCHUVAD, NIRAMARUDUR POST, MALAPPURAM DISTRICT., PIN - 676109 2 SURESH BABU.A.T S/O.VELU, ANDARATHODI HOUSE, NIRAPARAMBU ARICOL, PUTHUR POST, KOTTAKKAL, MALAPPURAM., PIN - 676503 3 GEETHA.K.V W/O.GOPALAKRISHNAN, PANICHAKATHIL HOUSE, ALINCHUVAD, NIRAMARUDUR POST, MALAPPURAM DISTRICT., PIN - 676109 BY ADVS. P.SANJAY (B/0) P.Sanjay A.PARVATHI MENON(K/000268/1991) RAHUL RAJ P.(K/547/2020) OP(C) NO. 2516 OF 2022 2 AMRUTHA M. NAIR(K/001096/2022) KIRAN NARAYANAN(K/000131/2018) BIJU MEENATTOOR(K/620/1992) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 2516 OF 2022 3 ## **JUDGMENT** The original petition is filed to set aside Ext.P3 proceedings and direct the Court of the Munsiff, Tirur to accept the execution petition that was filed by the petitioner to execute the award passed in ARC No.180/2020 by the Arbitrator of Chits, Coimbatore. The petitioner is the decree holder and the respondents are the judgment debtors in the above execution petition. 2. The concise case of the petitioner in the original petition is that: they had initiated a proceedings against the respondents under the Chit Funds Act before the Arbitrator of the Chits, Coimbatore as ARC No.180/2020. The Arbitrator passed Ext.P1 award. The petitioner laid the award to execution before the court below by filing Ext.P2 execution petition. But, the court below, by the impugned Ext.P3 proceedings, returned the execution petition for the purpose of complying with Section 39 of the Code of Civil Procedure (in short, “Code”). Ext.P3 OP(C) NO. 2516 OF 2022 4 proceedings is palpably wrong and passed without a proper understanding of the provisions of the Act. Hence, the original petition. 3. Heard; Sri.Lindons C.Davis, the learned Counsel appearing for the petitioner and Smt.A.Parvathy Menon, the learned Counsel appearing for the respondents. 4. The short point is, is there any illegality in Ext.P3 proceedings. 5. The petitioner filed Ext.P2 execution petition before the court below for the purpose of executing Ext.P1 award on the assertion that the respondents and their properties are within the jurisdiction of the court below. 6. The court below, by the impugned Ext.P3 proceedings, ordered return of the execution petition for the purpose of complying Section 39 of the Code. 7. This Court in **Krishnamoorthy vs. Khaleel** **Rahman** [1996 KHC 401] has held as follows: - “5. But on a closer examination of the provisions involved, I am of the view that the arguments OP(C) NO. 2516 OF 2022 5 advanced by the respondents that the Registrar cannot transfer the decree for execution cannot hold water in view of S.71(a) of the Chit Funds Act. As I had observed earlier, the Chit Funds Act provides for two modes of execution. One is to collect the amount due as arrears of land revenue, ie, proceedings under the Revenue Recovery Act. The other mode is that the Registrar should issue a certificate which is deemed to be a decree of a civil Court and it shall be executed in the same manner as a decree of such court. S.71(a) raises a legal fiction or fiction of law, if I may say so. According to the above provision, 1) the order of the Registrar shall be deemed to be a decree of the civil Court and 2) it shall be executed in the same manner as a decree of such court. What is the effect of this fiction is contained in the Black's Law Dictionary, 1959 Second Edition, at pages 494 and 495: "Fictio cedit veritati. Fictio juris non est ubi veritas. Fiction yields to truth. Where there is truth, fiction of law exists not. Fictio est contra veritatem, sed pro veritate habetur. Fiction is against the truth, but it is to be esteemed truth. Fictio juris non est ubi veritas. Where truth is, fiction of law does not exist. FICTION. An assumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place. New Hampshire Strafford Bank v. Cornel, 2 N.H. 324; Bihherd v.Smith. A fiction is a rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible. Best Ev. 419". OP(C) NO. 2516 OF 2022 6 Thus, when a law raises a fiction it presumes certain putative state of things existed and every thing is done to give flesh, blood and breath to that putative state of things so as to treat it as a reality. To use a colloquial language, it is really a dummy. But by a legal fiction, life is breathed into it so that it is treated like a real baby. 6. S.71(a) raises such a fiction of law, namely, the order passed by the Registrar is a decree of execution court and it shall be executed in the same manner as a decree of such court. The word 'such Court' means the court executing the decrees. The provisions under S.71 show that while executing the order of the Registrar, executing court has to proceed in the same manner as its own decree. It is not executed as a decree received on transfer from another court. Therefore, all the arguments raised by the respondents' counsel that Registrar is not a court and the order is not a decree and it cannot be transferred to a civil Court for execution lose its relevance. The law presumes that the Civil Court shall execute it as its own decree. In such cases, no transfer of the decree is necessary or contemplated”. 8. In the light of the clear exposition of law by this Court interpreting the Chit Funds Act, there is no necessity to file the award before the court within whose jurisdiction the award was passed and get it transferred to the court within whose jurisdiction the judgment OP(C) NO. 2516 OF 2022 7 debtors reside or properties are situated as provided under Section 39 of the Code. The court below is duly competent to execute the decree without any transfer. Thus, I am of the firm view that the court below has overstepped its powers of authority warranting interference by this Court under Article 227 of the Constitution of India. Resultantly, I allow the original petition as follows: - (i) Ext.P3 proceedings is set aside. - (ii) The petitioner is permitted to re-present Ext.P2 execution petition before the court below. - (iii) The court below shall accept Ext.P2 execution petition and proceed with the same in accordance with law. **Sd/-** **C.S.DIAS JUDGE** rkc/09.02.23 OP(C) NO. 2516 OF 2022 8 ## **APPENDIX OF OP(C) 2516/2022** PETITIONER EXHIBITS Exhibit P1 A COPY OF THE AWARD OF THE REGISTRAR OF CHITS DATED 23.12.2022. Exhibit P1(a) A COPY OF THE NOTARIZED ENGLISH TRANSLATION DATED 16.02.2022 OF EXT P1. Exhibit P2 A COPY OF THE EXECUTION PETITION IN AC 180/2020 DATED 23.05.2022 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, TIRUR. Exhibit P3 A COPY OF THE A-DAIRY REGISTER ISSUED AS PER THE ORDER OF MUNSIFF. Exhibit P4 A COPY OF THE CA NO.18/2023 DATED 09.01.2023 IN UNNUMBERED EP OF 2022 OF MUNSIFF COURT, TIRUR. Exhibit P5 A COPY OF THE COPY APPLICATION IN UNNUMBERED EP OF 2022 OF MUNSIFF COURT, TIRUR DATED 23.01.2023 ALONG WITH CASE DETAILS OF OPC NO.2516/2022 OF THIS HON'BLE HIGH COURT AND A COPY OF EXT.P3 IN OPC NO.2516/2022.