IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 OP(C).No. 91 of 2011(O) ----------------------- OS NO.73/1998 OF SUB COURT,NEYYATTINKARA .................... PETITIONERS -------------------- 1. SHEEBA,D/O.NESHAYYAN NADAR,SHEEJA BHAVAN CHEMBOOR DESOM,OTTASEKHARAMANGALAM VILLAGE. 2. SHEEJA,D/O.SUSHEELA,SHEEJA BHAVAN, CHEMBOOR DESOM,OTTASEKHARAMANGALAM VILLAGE. 3. SHIJU,S/O.NESHAYYAN NADAR,SHEEJA BHAVAN, CHEMBOOR DESOM,OTTASEKHARAMANGALAM VILLAGE. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): --------------- THE FEDERAL BANK,CHEMBOOR BRANCH, REPRESENTED BY ITS MANAGER. ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------ O.P.(Civil) No.91 of 2011 O ------------------------------------- Dated this the 24th day of January, 2011 J U D G M E N T O.S.No.73 of 1998 on the file of the Sub Court, Neyyattinkara, filed by the Federal Bank against Nesayyan Nadar and his wife Suseela were decreed ex-parte on 14.12.1998. Execution was levied in E.P.No.52 of 2009 for realisation of the decree debt by sale of the mortgaged properties belonging to the judgment debtors. Nesayyan Nadar died on 27.12.2008. The petitioners, the legal representatives of Nesayyan Nadar, filed an application to set aside the ex-parte decree. There was delay of more than 10 years in making the application. The trial court dismissed the application and it was confirmed by the High Court. 2. In the execution proceedings, notice was issued O.P.(Civil) No.91 of 2011 2 under Rule 66 of Order 21 of the Code of Civil Procedure. The petitioners filed this Original Petition under Article 227 of the Constitution of India at that stage, for the following reliefs : “a) To issue directions directing the respondent to extent the benefits and incentives available to an agricultural loan to settle the liability covered by the decree in O.S.No.73 of 1998 (E.P.No.52 of 2009) on the file of the Sub Court, Neyyattinkara ;0 b) To issue a direction permitting the petitioners to discharge the decree debt covered in E.P.No.52 of 2009 as per the interest applicable to agricultural loans in easy monthly instalments ; c) To issue a direction staying the sale of the property of the petitioners scheduled in E.P.No.52 of 2009 on the file of Sub Court, Neyyattinkara.” 3. The learned counsel appearing for the Federal Bank O.P.(Civil) No.91 of 2011 3 submitted that the Agricultural Debt Waiver and Debt Relief Scheme of 2008 is not applicable to loans taken before 31.3.1997. The loan in the present case was taken on 4.3.1996. Therefore, the petitioners are not entitled to any relief on the basis of the Debt Relief Scheme. 4. The learned counsel for the petitioners submitted that the petitioners are entitled to the benefit of one time settlement scheme. There is no case for the petitioners that they made any application to the Bank under the one time settlement scheme. They have also no case that they have complied with any of the conditions for getting the benefit of one time settlement scheme. Therefore, at this stage, that contention also cannot be entertained. 5. The executing court issued a notice under Rule 66 of Order 21. The remedy of the petitioners is to appear before the executing court and file objection. It is submitted by the O.P.(Civil) No.91 of 2011 4 learned counsel for the petitioners that for realisation of the decree debt, it is not necessary to sell the whole extent of the mortgaged property. Any contention which is available under law can be taken by the petitioners before the executing court. A Writ Petition cannot be filed at this stage for that relief. 6. The learned counsel for the petitioners submitted that even going by the decree, it is clear that interest at 21.88% with quarterly rest was charged on the debt up to the date of decree and interest at 12% was levied after the date of the decree. Now the amount due as claimed by the Bank comes to more than five times of the amount of the loan. It is submitted that in these circumstances, the petitioners expect some relief to be granted by the Bank. The petitioners would be free to approach the Bank for appropriate reliefs. In this Original Petition, none of these contentions are dealt with, since they are outside the scope of the proceedings under Article 227 of the Constitution of India. O.P.(Civil) No.91 of 2011 5 7. Lastly, the learned counsel for the petitioners submitted that the petitioners may be granted instalment facility to pay off the decree debt. In the peculiar facts and circumstances of the case, it is just and proper to permit the petitioners to pay off the decree debt in instalments. 8. Accordingly, the Original Petition is disposed of as follows : (i) The petitioners shall pay a sum of ` One lakh towards the decree debt on or before 28.2.2011. (ii) The balance decree debt shall be paid in nine equal monthly instalments payable on or before 28.3.2011 and on the 28th day of the succeeding months. (iii) If default is committed in payment of any of the instalments, the execution proceedings shall be O.P.(Civil) No.91 of 2011 6 proceeded with. If the petitioners pay the instalments regularly, the execution proceedings shall be kept in abeyance till the expiry of the period of last instalment. It is made clear that if default is committed in payment of any of the instalments, the petitioners would not be entitled to the benefit of this order and the execution proceedings shall continue forthwith. K.T.SANKARAN JUDGE csl