IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 OP(C).No. 557 of 2010(O) ------------------------ LAR.26/1994 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER: ------------------ M.G.ARAVINDAKSHAN, S/O.GOVINDAN, AGED 82 YEARS, MANAKKALATH HOUSE, AMALA NAGAR, PUZHAKKAL VILLAGE, THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT: --------------- THE SPECIAL TAHSILDAR (LA), RAILWAYS NO.1, THRISSUR. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.557 of 2010 --------------------------------------- Dated this 08th day of November, 2010 JUDGMENT This petition is in challenge of Ext.P5, order dated July 30, 2005 dismissing I.A.No.5121 of 2004 in L.A.R.No.26 of 1994 of the court of learned Additional Sub Judge-II, Thrissur. That was an application filed by the petitioner/claimant for amendment of decree to incorporate interest on solatium which according to the petitioner he is entitled to get in view of the decision in Sunder Vs Union of India (2001(3) KLT 489). Application was opposed by the respondent. Learned Additional Sub Judge dismissed the application observing that claim for interest on solatium was rejected by the Trial Judge, an application under Section 152 of the Code of Civil Procedure (for short, “the Code) is not maintainable and that at any rate, petitioner is entitled to get interest on solatium only after 19-09-2001 and since the entire proceedings were prior to that day and entire decree was satisfied. Learned counsel contends that the decision in Gurpreet Singh Vs. Union of India (2006(8) SCC 457) clarifying the decision in Sunder Vs Union of India (supra) that interest on solatium is payable from 19-09-2001 is not O.P(C).No.557 of 2010 : 2 : applicable to cases where application for amendment of judgment and decree under Sec.152 of the Code is made and that the said decision applies only to pending execution petitions. According to learned counsel reference court has committed a mistake in omitting to award interest on solatium and that could be corrected under Sec.152 of the Code. Learned Government Pleader appearing for respondent contends that in the light of the direction in paragraph 54 of the decision in Gurpreet Singh Vs. Union of India (supra) no claim for interest on solatium could be made for any period prior to 19-09-2001. 2. It is not disputed before me that the decree passed by the reference court was satisfied in full by 08-03-2001. Now the question is whether, moving under Sec.152 of the Code petitioner can request the court to correct judgment and decree to award interest on solatium for the period prior to 19-09-2001. 3. In Union of India Vs. Swaran Singh and Ors. (1996(5) SCC 501) the Supreme Court observed that a court cannot exercise power under Sec.152 of the Code to correct a decree to incorporate interest on solatium once the decree has become final. Learned counsel for petitioner contends that was a case where solatium was enhanced to 30% by amendment to the Act with effect from 24-09-1984 and a claim was made under O.P(C).No.557 of 2010 : 3 : Sec.152 of the Code on the basis of enhanced solatium. In Sunder Vs Union of India (supra), it was held that interest on solatium forms part of compensation payable to the claimant. In paragraph 28 it was observed that claimant who is entitled to get compensation is also entitled to get interest on the aggregate amount including on solatium. It is based on that decision that petitioner has chosen to file I.A.No.5121 ofd 2004 for correction of judgment and decree under Sec.152 of the Code. But in Gurpreet Singh Vs. Union of India (supra) the decision in Sunder Vs Union of India (supra) was clarified and in paragraph 54 it is stated that the decision in Sunder Vs Union of India (supra) would apply only to pending execution petitions and not in closed executions and that execution court is entitled to permit its recovery from the date of judgment in Sunder Vs Union of India (supra) (19-09-2001) and not for any prior period. The argument advanced by learned counsel for petitioner is that the said direction is applicable only in the matter of pending execution petitions. I am unable to accept that argument. Reading paragraph 54 of Gurpreet Singh Vs. Union of India (supra) it is clear that what the Supreme Court has done is to clarify the decision in Sunder Vs Union of India (supra) that interest on solatium is payable from 19-09-2001 O.P(C).No.557 of 2010 : 4 : when decision was rendered. It is difficult to accept the argument of learned counsel for petitioner that the said rider will not apply to cases where application is filed under Sec.152 of the Code on the trial side only to pending execution petitions. If that argument is accepted it would mean that executing court could award interest on solatium only from 19-09-2001 onwards but, the trial court could award interest on solatium even for a period prior to that. Having heard learned counsel for petitioner and learned Government Pleader I am persuaded to think that entitlement of the person concerned would be to claim interest on solatium from 19-09-2001 provided a claim to that effect was not made earlier and rejected. In the present case, it is not disputed that by 08-03-2001 there was a full and final settlement of the claim of petitioner. If that be so, even by invoking Sec.152 of the Code petitioner could not claim interest on solatium for a period prior to 19-09-2001. In view of the matter I do not find reason to interfere with the order of learned Sub Judge. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-