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Judgment
This original petition is filed by the first judgment debtor in E.P.No.235/2011 in O.S. No.87/2007 on the file of Sub Court, Alappuzha, challenging impugned order dated 31.01.2020 passed by the court below dismissing E.A.No.323/2019 filed by him seeking dismissal of Execution Petition.
The court below by the impugned order noticed that inasmuch as execution proceedings were not pending, E.A.No.323/2019 itself was not maintainable and accordingly, dismissed the petition.
The first respondent in this original petition obtained an award dated 10.09.2007 passed by the Lok Adalath for realisation of money from respondent Nos.2 and 3. Respondent Nos.2 and 3 are the office bearers of SNDP Branch No.3715, Ambalapuzha. E.A.No.323/2019 was filed by the present Secretary of the above said branch. The award passed by the Lok Adalath shows that a charge was created over 8.80 Ares of property owned by the said Branch.
The contention raised by the petitioner is that an award creating charge over the property could not have been passed inasmuch as the branch had not taken sanction either from Director Board of SNDP Yogam or from SNDP Union Council.
In short, the contention that was raised before the execution court was to the effect that the award sought to be executed was illegal and unenforceable under law.
The impugned order does not indicate that these contentions were considered by the court below.
I heard the learned counsel for the petitioner as well as respondents.
The fourth respondent already purchased the property sold in auction. The property is yet to be delivered by the execution court.
The grievance expressed by the learned counsel for the petitioner is to the effect that an erroneous order was passed by the court below assuming that an application under Section 47 of the code of Civil Procedure, 1908, will not lie when execution proceedings were not pending. The view taken by the court below is not sound.
I am of the opinion that the court below should have applied its mind the contentions raised in E.A.No.323/2019 and passed orders on merits.
After hearing the submissions made by the learned counsel on either side, I am of the opinion that the legal validity of award cannot be challenged by the petitioner before the execution court since the Branch represented by him is a party to the award. The remedy, if any, open to the petitioner is to challenge the validity of the award in appeal or appropriate forum as the case may be. Admittedly, no such challenge was made before any forum other than before the execution court.
The nature of contentions raised by the petitioner attacking executability of the award does not go to the root of the matter and cannot therefore be raised before the same court which is called upon to execute the award.
For the foregoing reason, I am of the opinion that the impugned order is not worth interfering in this original petition.
In the result, original petition fails and it is dismissed.
All pending interlocutory applications will stand closed.