IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 WP(C).No. 15398 of 2008(G) -------------------------- AGAINST THE ORDER DATED / / IN EP 88 2007 IN OS.245/2007 of PRL.M.C., KOCHI .................... PETITIONER: ------------ A.PURUSHOTHAMA BHAT, S/O.LATE D.ANANDA BHAT, AGED 69, RESIDING AT C.C.NO.IV/1086, MANJABHAGAVATHY LANE, CHERLAI, KOCHI - 2. BY ADV. SRI.S.RENJITH RESPONDENTS: ------------- THE FEDERAL BANK LTD, BANK JUNCTION, ALUVA. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.15398 of 2008 ------------------------------- Dated this the 26th May, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India by the judgment debtor in E.P.No.88/2007 in O.S.No.245/1997, on the file of the Munsiff's Court, Kochi. The prayer in the petition is to quash the proceedings in the Execution petition, contending that subsequent to the date of decree and when the earlier execution petition was pending, petitioner had paid Rs.43,000/= towards the principal amount, which was not deducted by the decree holder, and, therefore, the execution petition is not maintainable. 2. The learned counsel appearing for the petitioner was heard. The decree was passed on 21.5.1997. Even according to the petitioner, previous execution petition was also for sale of the mortgage property, and it was closed in the year 2002, and petitioner deposited only Rs.43,000/= towards the decree debt. The suit was decreed for Rs.69,286/= with interest at the rate of 16.5% per annum from the date of decree. The case of the judgment debtor is that the W.P.(C) No.15398/2008 2 payment made was towards principal and not interest, but the decree holder appropriated the same towards interest. Petitioner, judgment debtor, is not entitled to contend that payment is to be adjusted towards the principal debt. It is the right of the decree holder. It is more so when the payment was not specifically made towards the principal amount. If that be the case, Execution Court is competent to proceed with the Execution Petition. 3. Though it was argued that the actual amount shown in the sale proclamation is not correct, petitioner did not challenge the order passed by the court fixing the correct amount due. In such circumstances, I do not find any reason to interfere with the Execution proceedings or the sale proposed by the Executing Court. It is made clear that if the petitioner makes substantial payment, Executing Court shall grant an opportunity to the petitioner to pay the decree amount, and for that purpose, the Executing Court may adjourn the sale as provided under law. M.SASIDHARAN NAMBIAR, JUDGE nj.