HAMZA HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE prayer in this Original Petition is to call for the records in E.P.No.45 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.3208 of 2003 before the Assistant Registrar of Co-operative Societies, Perintalmanna for realization of the amount. The Arbitrator passed Ext.P2 award dated 28.1.2004 for realization of a sum of `6,14,997/- together with interest at 20% on the principal amount of `5 lakhs from 21.12.2002 till realization.

(3.) 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 the amounts paid by the judgment debtor from the total amount due, and claimed an exorbitant amount suppressing the payments made by the judgment debtor. 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.