IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 21241 of 2010(O) -------------------------- EP NO.22/2010 IN OS.178/2008 of SUB COURT, TIRUR .................... PETITIONER(S): --------------- K.MOHAMMED RAFI, S/O.ABDUL RAHMAN, AGED 35 YEARS, KAINIKKARA HOUSE, MARKET ROAD, TIRUR, MALAPPURAM DISTRICT, PIN 676 101. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): --------------- 1. STATE BANK OF TRAVANCORE, TIRUR BRANCH, MALAPPURAM DISTRICT, REP. BY ITS BRANCH MANAGER, PIN-676 101. 2. THE VILLAGE OFFICER, TRIKANDIYOOR VILLAGE, MALAPPURAM DISTRICT, PIN-676 101. ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 SRI.K.JAYESH MOHANKUMAR FOR R1 GOVT. PLEADER SHRI P.R.JAYAKRISHNAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.21241 of 2010 -------------------------------------- Dated this the 14th day of July, 2010. JUDGMENT Judgment debtor No.2 in E.P.No.22 of 2010 in O.S.No.178 of 2008 of the court of learned Sub Judge, Tirur is the petitioner before me. He was a guarantor for the principal debtor and has invited a decree for payment of money to respondent No.1. Respondent No.1 has proceeded against petitioner in execution of the decree and sought personal execution against him. In the meantime, respondent No.1 also took steps for recovery of amount under provisions of the Revenue Recovery Act (for short “the Act”). On revenue recovery authorities demanding payment of the amount petitioner approached the State Government and has obtained a favourable order for payment of the amount in fifty (50) installments. Challenging action of respondent No.1 in initiating simultaneous execution proceeding, petitioner has filed this Writ Petition. According to the learned counsel since the Government has granted installment facility to the petitioner, respondent No.1 is bound to obey and respect that order and was not justified in initiating simultaneous execution proceeding. Learned counsel for respondent No.1 contends that in law it is permissible to have simultaneous proceedings for recovery of the amount. 2. In the light of decision of Division Bench of this Court in Canara Bank v. Thankappan (1989 (2) KLT 74) there is no merit in the contention of petitioner that execution proceedings when recovery proceedings WP(C) No.21241/2010 2 under the Act are on, is illegal. There is nothing illegal in respondent No.1 initiating execution proceeding for realisation of the amount. There is therefore no reason to interfere with the proceeding in execution of the decree being carried on in the court below. 3. Learned counsel for the petitioner stated about financial difficulties being experienced by petitioner who according to the learned counsel is doing some petty business and happened to be a guarantor for the principal debtor who has gone abroad. Learned counsel requested that petitioner may be permitted to pay the balance amount due in installments as State Government has permitted. Learned counsel for respondent No.1 contends that whatever amount is already recovered under the Act has been adjusted in the amount payable and execution proceeding is only for the balance amount due. I have heard learned Government Pleader also who took notice for respondent No.2. 4. It is not disputed that the Government has granted installment facility to the petitioner and that has not been challenged by respondent No.1 so far. However I am not in agreement with the request of petitioner that installment facility may be granted in tune with the installments granted by the Government. For, going by the statement filed by respondent No.1 amount due under the decree now would cross Rupees six lakhs and it involves future WP(C) No.21241/2010 3 interest also. Having regard to the amount involved and other circumstances stated by learned counsel on both sides I am inclined to permit petitioner to pay the balance amount in twenty (20) equal monthly installments. Resultantly this Writ Petition is disposed of in the following lines: i. Petitioner is permitted to pay balance amount due under the decree in twenty (20) equal monthly installments beginning from 01.08.2010 onwards. The amount shall be deposited in the executing court before 5th (fifth) of every month. ii. In case of default in deposit of any two installments it will be open to respondent No.1 to proceed with execution of decree in the court below. iii. Recovery proceedings initiated by the State Government and being proceeded by respondent No.2 shall stand in abeyance during the said period of twenty (20) months or till default is committed by petitioner as stated in clause (ii) above. In case of such default it will be open to respondent No.2 also to proceed with the steps for recovery of amount under the provisions of the Act. THOMAS P.JOSEPH, Judge. cks