K.T. Sankaran, J.@mdashThe prayer in this Original Petition is to call for the records in E.P. No. 46 of 2011 on the file of the Sub Court, Manjeri and to quash the execution proceedings.
2. It is stated that the Petitioner availed a loan of Rupees Five lakhs from the Perintalmanna Service Co-operative Bank Ltd. (second Respondent). He claims that he paid certain amounts towards the loan amount. The Bank instituted ARC. No. 1766 of 2004 before the Assistant Registrar of Co-operative Societies, Perintalmanna for realization of the amount. The Arbitrator passed Ext.P2 award dated 25.2.2005 for realization of a sum of Rs. 6,57,606/- together with interest at 20% on the principal amount of Rs. 5 lakhs from 7.10.2004 till realization.
3. The second Respondent Bank attempted to sell the mortgaged property. The Petitioner filed W.P. (C) No. 34213 of 2005 at that juncture. As per Ext.P3 judgment in W.P. (C) No. 34213 of 2005, dated 28.2.2006, the Petitioner was permitted to pay the award amount in monthly instalments of Rs. 55,000/-. It was also held that if the Petitioner committed default in the matter of remitting, he would forfeit all the benefits extended as per the judgment. The Petitioner says that he paid some instalments. He also complains that the Bank did not consider the request for One Time Settlement. Therefore, the Petitioner filed W.P. (C) No. 23077 of 2006, in which, Ext.P5 interim order was passed staying the execution of the sale notices issued by the Sale Officer of Perintalmanna Service Co-operative Bank Ltd. on condition of the Petitioner remitting a sum of Rs. 50,000/-. Ext.P5 stay order dated 31.8.2006 was for a period of six weeks. It is stated that W.P.(C) No. 23077 of 2006 is still pending. However, it is stated that the interim stay granted as per Ext.P5 was not extended. The learned Counsel for the Petitioner submitted that even after the expiry of the stay, the Petitioner had paid further amounts.
4. The grievance of the Petitioner is that all the payments made by the Petitioner were not deducted and huge amount was claimed by the second Respondent Bank in the Execution Petition. The counsel also submitted that though mortgaged properties are available, the Bank prayed for execution of the award by arrest and detention of the Petitioner in civil prison. In these circumstances, the Petitioner prays for setting aside all further proceedings in the Execution Petition.
5. The Petitioner has not entered appearance in the Execution Petition. The first posting of the Execution Petition is on 4.6.2011. I do not think that the power under Article 227 of the Constitution of India can be exercised to quash the proceedings in an Execution Petition on the ground that the decree holder did not deduct all the payments made by the judgment debtor from the total amount due, and claimed an exorbitant amount. The judgment debtor would be entitled to appear before the executing court and file objections pointing out the payments already made by him. The executing court is bound to consider the objections raised by the judgment debtor and to arrive at a conclusion as to the actual amount due. Only thereafter, the process of execution would follow. Without resorting to such a course of putting forward objections before the executing court, the Petitioner is not entitled to approach the High Court under Article 227 of the Constitution of India for the grant of the reliefs mentioned above.
Reserving the right of the Petitioner as mentioned above, the Original Petition is dismissed.
