JUDGMENT : M.A. ABDUL HAKHIM, J. 1. The Plaintiff in a suit for permanent Prohibitory injunction is the appellant. 2. The Trial Court dismissed the suit. The First Appellate Court dismissed the appeal filed by the plaintiff confirming the judgment and decree of the Trial Court. This Regular Second Appeal is filed challenging the judgment and decree of the First Appellate Court confirming the Trial Court judgment. This Court had issued notice before admission in this Regular Second Appeal, and hence, the respondent has appeared. 3. I heard the learned counsel for the appellant, Sri. V.R.K. Kaimal and the learned counsel for the respondent, Sri. K.V. Sohan. 4. The facts of the case are more or less admitted. The plaintiff derived the Plaint Schedule property having an extend of 5.85 Acres as per Ext.A1 Sale deed of the year 1997. Plaintiff mortgaged the said property in the year 1997 with Madayi Co-operative Rural Bank Ltd. for availing a loan of Rs.5,00,000/- executing Ext. A6 mortgage deed. On account of the default committed by the plaintiff to repay the loan, the property was put in an auction sale on 21.11.2002. The defendant purchased the plaint schedule property in the said auction, and the auction was confirmed on 03.01.2004. He was issued with Ext. B1 Sale certificate dated 01.10.2004 and Ext. B2 Assignment dated 31.12.2004. 5. The present suit is filed on 06.09.2005 seeking a permanent prohibitory injunction restraining the defendant and his men from trespassing into the Plaint Schedule property and committing any waste therein and from evicting the plaintiff from the Plaiproperty other than by due process of law. The suit is filed on the principal contention that the defendant did not take delivery of the property pursuant to the Certificate of Sale issued by the Bank and the possession continued with the plaintiff. 6. The learned counsel for the appellant contended that mere issuance of a Sale Certificate under Rule 83 (5) of Kerala Co-operative Societies Rules is not sufficient to obtain delivery of the property. On issuance of a Sale Certificate under Rule 83(5), the Purchaser has to obtain the delivery through the process of the court. He has to obtain the delivery through the Competent Civil Court through the proceedings under Order 21 Rule 95 CPC. Admittedly, the defendant has not obtained delivery through Civil Court under Order 21 Rule 95 CPC. On issuance of a Sale Certificate under Rule 83(5), the Purchaser has to obtain the delivery through the process of the court. He has to obtain the delivery through the Competent Civil Court through the proceedings under Order 21 Rule 95 CPC. Admittedly, the defendant has not obtained delivery through Civil Court under Order 21 Rule 95 CPC. A mere statement in Exts.B1 and B2 that already given to the purchaser is not sufficient. Ext.A6 Mortgage Deed would show that in spite of the execution of the creation of the mortgage, the Plaint schedule property continued in the possession of the plaintiff. Even the Mortgagee Bank has not obtained possession of the property for delivering the same to the auction purchaser. There is no document to show that the purchaser obtained the delivery of the property from the plaintiff/defaulter. The learned counsel further contended that there is a specific provision under Section 17 of the Kerala Co-operative Land Mortgage Bank Act, 1960, to take delivery of property by the purchaser. The defendant purchaser has not obtained delivery through the proceedings under Section 17 of the Kerala Cooperative Land Mortgage Bank Act 1960. 7. On the other hand, the learned counsel respondent submitted that there is no provision either in the Kerala Co-operative Societies Act or in the Rules made thereunder to take delivery of possession from the defaulter. The question of obtaining delivery through court arises only in the case of an obstruction from the part of the defaulter. The Trial Court, as well as the First Appellate Court, has rightly found that the defendant is in possession of the Plaint Schedule Property. The plaintiff did not mount to the Witness Box. The evidence of PW-1, who is the daughter of the plaintiff, would show that even though she claimed that the entire improvements in the plaint Schedule properties were made by the plaintiff, she was unable to give details of the improvements. In a suit for simple injunction what is relevant is the possession of the plaintiff as on the date of the suit. Since the plaintiff could not prove that she was in possession of the Plaint Schedule Property, she is not entitled to succeed in the suit. 8. I have considered the rival submissions. 9. In a suit for simple injunction what is relevant is the possession of the plaintiff as on the date of the suit. Since the plaintiff could not prove that she was in possession of the Plaint Schedule Property, she is not entitled to succeed in the suit. 8. I have considered the rival submissions. 9. Rule 83 (5) of the Kerala Co-operative Societies Rules provides for the issuance of a Certificate of sale to the purchaser on confirmation of sale in auction. Ext. B1 is the Certificate of Sale issued by the bank in favour of the defendant. Rule 84 deals with the delivery of possession. Rule 84 provides that where any lawful purchaser of immovable property is resisted and prevented by any person other than a person (not being the defaulter) claiming in good faith to be in possession of the property on his own account from obtaining possession of the immovable property purchased, any Court of competent jurisdiction, on application and production of the certificate of sale referred to in sub-rule (5) of R.83 above, shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the court. Section 84 would indicate that in case of resistance in taking delivery from the part of a person other than the defaulter, the Auction Purchaser has to approach the competent Civil Court to take the delivery of the property. In such cases, the proceedings are to be initiated under Order 21 Rule 95 CPC. 10. Going by the plain and literal meaning of Rule 84, it is applicable only in case the delivery is resisted by any person other than the defaulter, and it is not applicable in case the resistance is from the part of the defaulter. There is no provision either in the Kerala Co-Operative Societies Act, or the Rules delivery of possession in case the resistance is made from the defaulter/judgment debtor. The learned counsel for the appellant relied on the decision of this Court in Ayancheri Service Co-Op. Bank v. Moideen, 1988 (2) KLT 1035 to substantiate the point that the right of the decree-holder to obtain possession as per the award under the Kerala Co-operative Societies Act is through the proceedings under Order 21 Rule 95 CPC. The learned counsel for the appellant relied on the decision of this Court in Ayancheri Service Co-Op. Bank v. Moideen, 1988 (2) KLT 1035 to substantiate the point that the right of the decree-holder to obtain possession as per the award under the Kerala Co-operative Societies Act is through the proceedings under Order 21 Rule 95 CPC. True, this Court held in the said decision that the decree-holder has the right under Order 21 Rule 95 CPC to obtain delivery of the property in occupation of the judgment debtor when the delivery is obstructed by him. This Court took such a view since there is no provision either in the Kerala Co-operative Societies Act or in the Rules made thereunder enabling the decree-holder to obtain possession from the judgment debtor obstruction is from the part of the judgment debtor. 11. But the question is whether delivery is to be obtained through Order 21 Rule 95 in all cases to prove possession even in the absence of any resistance from the part of any person. Since there is no provision either in the Kerala Co-operative Societies Act or in the Rules made thereunder mandating to take delivery in the absence of resistance, I am of the view that in every case of issuance of Certificate of Sale under Rule 83(5), the delivery is not required to be obtained through a court of competent jurisdiction. Delivery is required to be obtained through Court only in the case of resistance. 12. The Trial Court, as well as the First Appellate Court, found that the plaintiff does not have a case that she obstructed the delivery when the same was attempted to defendant/auction purchaser is not required to initiate any proceeding to obtain delivery of the property. 13. The learned counsel for the appellant relied on Section 17 of the Kerala Co-operative Societies Land Mortgage Bank Act 1960 and argued that the said provision is applicable to the case on hand, and the defendant did not take delivery through the proceedings under the said provisions. Of course, Section 17 of the said Act mandates to take delivery on issuance of a Certificate of sale. But the said Act is applicable only to Co-operative Land Mortgage Banks in the State of Kerala. Madayi Cooperative Rural Bank Ltd. which sold the property to the defendant, is not a Land Mortgage Bank. Of course, Section 17 of the said Act mandates to take delivery on issuance of a Certificate of sale. But the said Act is applicable only to Co-operative Land Mortgage Banks in the State of Kerala. Madayi Cooperative Rural Bank Ltd. which sold the property to the defendant, is not a Land Mortgage Bank. Section 17 is applicable only to the sale made in accordance with Section 16 of the said Act. Here, the sale is made in accordance with the provisions of the operative Societies Act and the Rules made thereunder. In the case of sale made under the provisions of the Kerala Co-operative Societies Act and the Rules made thereunder, the provisions of the Kerala Co-operative Land Mortgage Bank Act, 1960 is not applicable. Hence, the defendant is not liable to take delivery of the property in accordance with the provisions of the Kerala Cooperative Land Mortgage Bank Act, 1960. 14. The Trial Court, as well as the First Appellate Court, has found that the defendant/auction purchaser has been in possession of the property and made various improvements in the Plaint scheduled property. The Trial Court, as well as the First Appellate Court, relied on the evidence of PW-1, who is the daughter of the plaintiff, to arrive at such a conclusion. It is seen from Exts.C1 and C2 Commission Reports that there are several improvements, including a tarred road in the Plaint schedule property. The property is well bounded. Though PW-1 claimed that all the improvements in the Plaint schedule property were made by the plaintiff, she could not give details of the said improvements and as to when, how, and through whom those improvements were made. PW-1 even admitted in cross-examination that the Sales Officer had delivered possession to the defendant. 15. In a suit for injunction what is material is the possession as on the date of the suit. There is nothing on record to show that the plaintiff is in possession of the plaint schedule property. 16. It is admitted by PW-1 that the instruction for preparing the Proof Affidavit of PW-1 was given by the plaintiff as well as PW-1 to the advocate. The plaintiff did not mount to the Witness box. There was no sufficient explanation as to why the plaintiff did not mount to the Witness box. Non examination of the plaintiff is fatal to the case of the plaintiff. 17. The plaintiff did not mount to the Witness box. There was no sufficient explanation as to why the plaintiff did not mount to the Witness box. Non examination of the plaintiff is fatal to the case of the plaintiff. 17. In view of the aforesaid discussion, I do not find any ground or reason to interfere with the concurrent judgments of the Trial Court as well as the First Appellate Court. No substantial question of law arises in the matter requiring admission of the appeal. Accordingly, the Regular Second Appeal is dismissed.