The execution sale was declared null and void due to the execution court's lack of jurisdiction from the absence of a required certificate from the Registrar, which is mandatory for the award to be executed as a deemed decree.

JUDGMENT :

Sathish Ninan, J.

These First Appeals from Orders arise from the dismissal of applications to set aside sale, filed under Order XXI Rule 90 of the Code of Civil Procedure (CPC).

2. FAO 93/2023 arises from EA 5/2022, which was filed by the judgment debtor; FAO 25/2024 arises from EA 7/2022, filed by a third party; and FAO 26/2024 arises from EA 6/2022, also filed by a third party. The respective petitioners are in appeal.

3. The property involved in these proceedings is 4 acres and 14 cents, (hereinafter referred to as “the property”). The first respondent in all these proceedings is the decree holder-auction purchaser.

4. The decree holders secured an award against the judgment debtor in ARC 1030/2016 filed under Section 69 of the Kerala Co-operative Societies Act. The award was passed on 30.03.2019 for Rs. 2,33,42,751/-.

5. The award holder/decree holder filed EP 28/2019 before the Subordinate Judge's Court, Pala, seeking execution of the award as enabled under Section 76(a) of the Act. In Execution, the property was purchased by the decree-holder on 05.07.2022.

6. On 01.09.2022, the respective appellants filed applications under Order XXI Rule 90 CPC seeking to set aside the sale. The grounds alleged were: -

(a) Lack of jurisdiction of the execution court for non-compliance with the requirements under Section 76(a) and Rule 72 of the Co-operative Societies Act and Rules (hereinafter referred to as “Act” and “Rules”).

(b) Non-compliance with the prescriptions under Order XXI Rule 67 CPC.

(c) Non-application of mind by the court in fixing the upset price.

The execution court overruled the objections and dismissed the applications.

7. We have heard Sri.Abraham George Jacob, the learned counsel for the appellant, Sri.Shaji Thomas, the learned counsel for the first respondent and Sri.V.P.K.Panicker, the learned counsel for the second respondent. On our request, Sri.P.P.Thajudheen, the learned special Government Pleader (Co-operative Societies) also addressed us.

8. Elaborating on the three grounds of challenge against the execution sale, the learned counsel for the appellant submits that Section 76(a) and Rule 72 (2) of the Act and Rules mandates obtaining of a certificate from the Registrar to enable the award holder to execute the award before the Civil Court. The certificate is issued in Form 12 to Appendix II to the Rules. It is the issuance of such a certificate that makes the award a deemed decree, making it liable to execution in the civil court. In the case at hand, such certificate in Form 12 was not obtained and produced by the award holder before the execution court. Hence the execution court lacked inherent jurisdiction to execute the award. Therefore, the entire sale proceedings are without jurisdiction and void. Referring to Order XXI Rule 67 CPC, the learned counsel for the appellant submits that paper publication of the sale proclamation as mandated in the Rules was not effected. This amounts to material irregularity in the publishing and conduct of sale. This has resulted in the sale of the property for a much lower value than it is to fetch. This has resulted in substantial injury.

9. It is next contended by the appellant that though the property contained a factory building and other improvements, they were not valued and shown in the proclamation. This amounts to violation of the requirements under Order XXI Rule 66 CPC and material irregularity in the publishing and conduct of the sale affecting the sale price and thus resulting in substantial injury.

10. The learned counsel for the award holder/ auction purchaser would on the other hand submit that the contention with regard to lack of jurisdiction is not one that is available in an application under Order XXI Rule 90 CPC. He has also pointed out that a Form-12 certificate from the Registrar was obtained pending the proceedings to set aside the sale and was produced before the execution court. Thus, the defect if any, has been cured. Referring to Order XXI Rule