Petitioners must challenge prior orders before contesting successor orders, emphasizing procedural propriety in execution matters.

JUDGMENT

The petitioners impugn Ext.P11 order of the Additional Sub Court, Palakkad, in E.P.No.97/2019 in LAR No.1/2017, asserting that Ext.P7 order issued by it earlier is in error, and that the calculation of amounts found due to the petitioners is egregiously improper. They, however, concede that they did not challenge Ext.P7 until now, but that they filed a calculation statement before the Execution Court, which has been rejected, leading to Ext.P11 order being issued. They thus pray that Exts.P7 and P11 orders be set aside.

2. Sri.T.M.Sunil – learned counsel for the respondents, on the contrary, submitted that, as is evident from Ext.P5, the remittances alleged to have been made by the respondents towards Income Tax are all belated and hence that the Execution Court was without error in having earlier issued Ext.P7 order. He submitted that when Ext.P7 remains uncontested, it was improper for the petitioners to have then filed a calculation statement contrary to the findings therein; and obviously, therefore, that the said Court could have only rejected it through Ext.P11 order. He thus prayed that this original petition be dismissed.

3. I have examined the afore rival submissions, on the touchstone of the various materials available on record.

4. The controversy between the parties is primarily with respect to the payments alleged to have been made by the petitioners, including the deductions effected under the Income Tax Act . These are issues which are in the realm of factual circumstances and documentary materials, which cannot be considered by this Court at the first instance.

5. As rightly argued by Sri.T.M.Sunil – learned counsel for the respondents, the petitioners did not choose to challenge Ext.P7 until such time as they filed this original petition. On the contrary, they approached the Execution Court with a new calculation statement, which appears to run contrary to the said order; and obviously, the Court was left with no other option but to reject it, thus leading to Ext.P11 order.

6. It is, therefore, clear that unless the petitioners are able to show that Ext.P7 is in error, they cannot challenge Ext.P11 - which is only a consequential order - on its merits. However, the adjunct question is whether it would be open to the petitioners to challenge Ext.P7 before this Court, without having approached the Execution Court itself with an application for review, particularly when they say that certain remittances made by them have not been properly accounted for.

7. I am of the firm view that it will not be prudent for this Court to enter into the controversy at the first instance and that the petitioners must approach the Execution Court appropriately. However, to ensure that they obtain an opportunity to do so, without the imminent threat of attachment and distress, I deem it necessary to give them a breathing time.

In the afore circumstances, this original petition is closed; however, leaving full liberty to the petitioners to approach the Execution Court appositely against Ext.P7; and if this is done within a period of one week from the date of receipt of a copy of this judgment, the same shall be considered by the said Court after hearing the parties, thus culminating in an appropriate order and necessary action thereon within a period of two months thereafter.

If the petitioners are to invoke the afore reserved liberty, then, until such time as orders are issued by the Execution Court, all further action pursuant to Ext.P11 shall stand deferred and will be taken forward only depending upon the said decision to be taken by the said Court.