The court determined that properties owned by a petitioner, not mortgaged, cannot be proceeded against unless identified as belonging to the debtor, affirming the need to first pursue mortgaged assets for debt recovery.

JUDGMENT

Petitioner is the brother of the 8^th respondent. The

8^th respondent had availed credit facilities from the 5^th respondent bank. Those loans are secured by the mortgage of certain immovable properties, stated to be an extent of nearly six acres of land, belonging jointly to the parents of the petitioner and the 8^th respondent. On default being committed by the 8^th respondent, the bank initiated proceedings under Section 69 of the Kerala Co-operative Societies Act , 1969, and obtained Awards determining the liability. The Awards obtained by the bank have been put to execution and the in the execution proceedings, the movables allegedly belonging to the 8^th respondent and the parents of the petitioner and the

8^th respondent were sought to be attached and sold.

2. The petitioner is before this Court being aggrieved by the fact that under the guise of attaching the movables of the 8^th respondent and the parents of the petitioner and the 8^th respondent, the Authorities are attempting to proceed against the movables in the house of the petitioner, which belongs absolutely to the petitioner, and over which the 8^th respondent and the parents of the petitioner and the 8^th respondent have absolutely no right.

3. The learned counsel appearing for the

5^th respondent bank submits that the amount determined as the liability of the 8^th respondent in the year 2022, at the time when the Awards were passed, is itself Rs.2.79 crore. It is submitted that surreptitiously and with the intent to evade the liability under the Awards, certain properties, including the house over which the petitioner now claims ownership, were transferred/settled in the name of the petitioner by the father of the petitioner. It is submitted that the petitioner, the 8^th respondent, and the parents of the petitioner and the 8^th respondent are all residing under the same roof, and the settlement in favour of the petitioner on 04-01-2023 was after the date of the Award. It is submitted that though the properties settled in favour of the petitioner are not part of the mortgaged properties, it was open to the respondent bank to initiate proceedings against those properties also if they had continued to remain in the ownership of the father of the petitioner and the 8^th respondent. It is submitted that though the house and immovable property now standing in the name of the petitioner cannot be proceeded against (unless the 5^th respondent establishes, in other proceedings, that the settlement was fraudulent), since the petitioner, the 8^th respondent and the parents of the petitioner and the 8^th respondent are all residing under the same roof, it was well within the rights of the bank to levy execution against the movables, and no legal objections can be taken by the petitioner to the same.

4. The learned counsel appearing for the

8^th respondent submits that presently there is a 'നവകേ(cid:5)രളീയം കുടിശ്ശി(cid:5) നിവാരണ പദ്ധതി -2025-2026' in force, and the 8^th respondent may be permitted to approach the 5^th respondent for settlement of liabilities under the said scheme.

5. The learned counsel appearing for the petitioner submits that the 5^th respondent bank must attempt to recover the amounts due to it by proceeding against the mortgaged property. It is submitted that the sale of the mortgaged property will be sufficient for recovering the entire amount due to the 5^th respondent bank. It is submitted that the proceedings against the movables in the house of the petitioner are only to pressurise the petitioner to settle the liability of the 8^th respondent when he has no legal responsibility to do so.

6. Having heard the learned counsel appearing for the petitioner, the learned Government Pleader appearing for the official respondents, the learned counsel appearing for respondents 5 and 6 and the learned counsel appearing for the 8^th respondent, I am of the view that in the absence of any mechani