IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 3468 of 2011(O) ------------------------- EP.14/ 2008 IN OS.94/2006 of SUB COURT,KATTAPPANA .................... PETITIONER ----------------- ABRAHAM K.J., AGED 52, S/O. JOHN, KOLLAKOMBIL HOUSE, SANTHIGRAM P.O., KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT: ---------------- FEDERAL BANK LTD., ERATTAYAR BRANCH, ERATTAYAR P.O., IDUKKI, REP. BY MANAGER, PIN-685 514. THIS OP (CIVIL) HAVING COME UP FOR ADMISSIONON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk OP(C).No. 3468 of 2011(O) ------------------------------- APPENDIX ------------- PETITIONER(S) EXHIBITS ---------------------------- EXT.P1 : TRUE COPY OF EP NO.14/2008. EXT.P2 : TRUE COPY OF THE NOTICE ISSUED UNDER SEC.13(4) PURPORTING TO TAKE SYMBOLIC POSSESSION OF THE PROPERTY CHARGED IN THE DECREE. EXT.P3 : TRUE PHOTOSTAT COPY ORDER DTD.4.11.2010 IN SA NO.679/2010 BEFORE DRT, ERNAKULAM. EXT.P4 : TRUE COPY OF PAYMENT DTD.14.2.2011. EXT.P5 : TRUE PHOTOSTAT COPY OF A STATEMENT WAS ISSUED BY THE DECREE HOLDER ON 9.3.2011. EXT.P6 : TRUE PHOTOSTAT COPY OF VALUATION REPORT PREPARED BY THE ADVOCATE COMMISSIONER. EXT.P7 : TRUE COPY OF ORDER DTD.9.3.2011 BY THE EXECUTION COURT. EXT.P8 : TRUE COPY OF THE INTERIM ORDER DTD.30.3.2011 IN OPC NO.1285/2011 OF THIS HON'BLE COURT. EXT.P9 : TRUE COPY OF THE JUDGMENT DTD.28.6.2011 THROUGH FINAL ORDER IN THE ORIGINAL PETITION NO.1285/2011. EXT.P10: TRUE PHOTOSTAT COPY OF THE SALE PROCLAMATION FOR 40¾ CENTS AND THE HOUSE. EXT.P11: TRUE COPY OF THE STATEMENT ISSUED IN THE MONTH OF SEPTEMBER, 2011. EXT.P12: TRUE COPY OF THE EA NO.173/2011 IN OS NO.94/2006 ON THE FILES OF SUB COURT, KATTAPPANA. EXT.P13: TRUE COPY OF THE EXECUTION APPLICATION NO.174/2011 IN OS NO. 94/2006 ON THE FILES OF SUB COURT, KATTAPPANA. EXT.P14: TRUE COPY OF THE ORDER DTD.23.9.2010 PASSED BY THE AGRICULTURAL DEBTS RELIEF COMMISSION. RESPONDENTS' EXHIBITS : NIL --------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3468 of 2011 --------------------------------------- Dated this 27th day of October, 2011 JUDGMENT Petitioner is the judgment debtor in E.P.No.14 of 2008 in O.S.No.94 of 2006 of the Court of learned Sub Judge, Kattappana. Respondent filed the suit and obtained a decree on 05.10.2006 for recovery of `.2,49,261/- with interest with rests by sale of property mortgaged. In the meantime, respondent took steps under the SARFACI Act. Petitioner challenged that proceeding before the Debt Recovery Tribunal (for short, "the DRT”). The DRT granted interim stay on condition of payment of certain amount. Later, respondent initiated execution proceeding in the court below. The property excluding the house was proclaimed for sale fixing the reserve price at `.3,76,749/-. The sale was scheduled to be held on 02.04.2011. At that stage, petitioner approached this Court with O.P(C).No.1285 of 2011. This Court passed Ext.P8, order of stay on condition of deposit of `.50,000/- on 25.05.2011. Original petition was disposed of on 28.06.2011 allowing petitioner to pay the amount due in six installments beginning from 10.08.2011. It was directed that O.P(C).No.3468 of 2011 -: 2 :- execution proceeding will stand in abeyance until 15.01.2012 and that in case of default, it will be open to the executing court to recover the entire balance amount. Even as per the version of petitioner, he has paid only one installment as per judgment dated 28.06.2011. Then the executing court continued proceeding and proclaimed the property for sale. Thereon petitioner came with Exts.P12 and P13, applications to exclude the house from the property to be sold and to reduce the extent of property to be sold taking into account the amount already paid. Grievance of petitioner is that without disposing of Exts.P12 and P13 the property is proclaimed for sale. 2. Learned counsel contended that simultaneous proceeding are not maintainable before the DRT and the executing court and relied on the decision in Sheriff Vs. State of Kerala (2005(1) KLT 873). I am not inclined to accept that argument. Such an argument was not raised in O.P(C).No.1285 of 2011 when petitioner obtained a favourable judgment on 28.06.2011. Petitioner failed to comply with the directions in that judgment. Therefore the execution proceeding has to proceed. O.P(C).No.3468 of 2011 -: 3 :- 3. So far as the pendency of Exts.P12 and P13, applications are concerned, it is open to the petitioner to request the executing court to consider those applications. With the above observation this original petition is closed. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-