IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).NO. 2975 OF 2010(O) ------------------------------------- OS.1136/2004 OF I ADDL.SUB COURT, THRISSUR .................... PETITIONER(S): ---------------------- E.C.PREMLAL S/O.E.K.CHANDRAN, EDAKKADAN HOUSE, KUTTANELLUR, THRISSUR. BY ADV. SRI.K.A.SREEJITH RESPONDENT(S): ------------------------ ASSISTANT GENERAL MANAGER, STATE BANK OF INDIA TOWN BRANCH, THRISSUR. ADV. SRI.P.V.SURENDRANATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBITP1 TRUE COPY OF THE AWARD PASSED IN O.S. NO.1136 OF 2004 IN THE FILES OF THE FIRST ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P2 TRUE COPY OF THE EXECUTION PETITION NO.64 OF 2009 IN O.S. NO.1136 OF 2004 IN THE FILES OF FIRST ADDITIONAL SUB JUDGE, THRISSUR. EXHIBIT P3 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER TO THE EXECUTION PETITION NO.64 OF 2009 IN O.S. NO.1136 OF 2004 IN THE FILES OF THE FIRST ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P4 TRUE COPY OF THE SALE PROCLAMATION IN TO THE EXECUTION PETITION NO.64 OF 2009 IN O.S. NO.1136 OF 2004 IN THE FILES OF THE FIRST ADDITIONAL SUB COURT, THRISSUR. EXHIBIT P5 TRUE COPY OF PETITION SUBMITTED BY THE PETITIONER TO THE RESPONDENT STATING THE FACTS. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.2975 of 2010 ==================================== Dated this the 04th day of October, 2010 J U D G M E N T Judgment debtor No.1 in E.P. No.64 of 2009 in O.S. No.1136 of 2004 of the court of learned additional Sub Judge-I, Thrissur is the petitioner before me requesting to quash Ext.P4, sale notice and for a declaration that Ext.P2, execution proceeding is illegal. According to the petitioner he had availed a loan from the respondent and the property of judgment debtor No.3 was placed as security for the said loan. Later petitioner purchased the property from judgment debtor No.3 who had by then availed an educational loan from the respondent offering the same property as additional security. Respondent filed the suit. In the meantime the matter was sent to the Adalath where there was Ext.P1, settlement as per which respondent agreed that on payment of amount due as stated therein the documents relating to the equitable mortgage will be released to the petitioner. Based on Ext.P1, it is not disputed that an award also was passed directing petitioner to discharge liability of respondent before 31.01.2008. Alleging that the said direction was not complied W.P(C) No.2975 of 2010 -: 2 :- respondent filed E.P. No.64 of 2009 and pursuant to the proceeding thereon the mortgage property was brought for sale. Exhibit P4 is the sale notice. Now the contention of petitioner is that he was ready and wiling to discharge the liability as per Ext.P1, compromise and the award that followed but respondent was not giving the details of the actual amount due. In the circumstances it is contended that Ext.P2, execution proceeding and following that Ext.P4, sale notice cannot be sustained. Learned counsel for respondent contends that it was in fact offered to the petitioner that if he paid the balance amount of Rs.1,28,000/-, respondent is prepared to waive the amount upto to Rs.50,000/- but that also was not complied by petitioner. According to the learned counsel the same property has been given as additional security for the educational loan availed by judgment debtor No.3 and hence respondent has a lien over the documents in question. 2. Contentions above raised are to be urged before the executing court. It is not required for this Court to go into those questions at the first instance. I permit the petitioner to raise all these contentions before the executing court. It is directed that if those contentions do arise and are raised before the executing W.P(C) No.2975 of 2010 -: 3 :- court, executing court shall proceed with the sale of the property only after adjudicating upon the dispute raised by the petitioner. Resultantly, Writ Petition is disposed of permitting petitioner to raise his objection before the executing court and directing the executing court to proceed with execution pursuant to Exts.P2 and P4 only after adjudicating upon the objection of petitioner (if it arises for decision). THOMAS P. JOSEPH, JUDGE. vsv