IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 30735 of 2008(H) -------------------------- AGAINST THE ORDER IN EP.135/1990 IN LAR.42/1993 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER(S): --------------- KUTTAN NEELAKANDAN, VALIYAPARAMBU, THEKKEPURAYIDATHIL, NALPATHIMALA, ATHIRAMPUZHA, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. GOVERNMENT PLEADER SMT.LATHA THANKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 30735/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 13.8.2007 IN CRP NO.111 OF 2007. EXT.P2: COPY OF THE STATEMENT OF BALANCE AMOUNT FILED BY THE PETITIONER DATED 6.9.2007. EXT.P3: COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 7 .9.2007. EXT.P4: COPY OF THE ORDER DATED 11.10.2007 IN E.P.NO.135/99 IN LAR NO.42/1993. EXT.P5: COPY OF THE STATEMENT OF ACCOUNT DATED 22.10.2007 EXT.P6: COPY OF THE STATEMENT OF ACCOUNT. EXT.P7: COPY OF THE ORDER DATED 2.8.2008 IN E.P.NO.135/99 IN LAR NO.42/93. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.30735 of 2008 --------------------------------------------- Dated this the 4th day of March, 2009 JUDGMENT The decree holder in LAR No.42 of 1993, on the file of the Additional Sub Court, Kottayam, has filed this Writ Petition challenging Ext.P7 order dated 2nd August 2008 passed by the executing court. 2. The decree holder filed E.P.No.135 of 1999 claiming that the judgment debtor has not paid the entire amount of compensation. As per the order dated 15.6.2006, the executing court rejected the contentions of the decree holder and recorded full satisfaction of the decree. That order was challenged by the decree holder in C.R.P.No.111 of 2007. The order passed by the executing court was set aside and C.R.P.No.111 of 2007 was allowed on 13.8.2007. In C.R.P.No.111 of 2007, this Court issued directions to the executing court on three points. (i) The decree holder is entitled to solatium on the value of the building as well. (ii) The interest is to be calculated taking into account the value of the building as well in the WPC No. 30735/2009 2 total amount of compensation. (iii) In the case of appropriation of interest, the principles laid down in Gurpreet Singh vs. Union of India (2006(8) SCC 457) shall be followed. 3. After the order in C.R.P.No.111 of 2007, a statement was filed by the decree holder before the executing court claiming a total amount of Rs.13,88,254.20. The judgment debtor filed objections dated 7th September 2007 and also filed a statement of account stating that no amount is due to the decree holder. The executing court considered the case put forward by the decree holder and that of the judgment debtor and by a detailed order dated 11th October 2007 held that the contentions put forward by the judgment debtor are unsustainable. It was held in clear terms that none of the contentions raised in the objection of the judgment debtor is acceptable. It was also held by the executing court that the statement filed by the judgment debtor showing that there is no balance due to the decree holder is also not acceptable. Thereafter, the executing court considered the claim statement made by the decree holder and WPC No. 30735/2009 3 held that it is not fully acceptable. For the ends of justice, the decree holder was allowed to file fresh claim statement in accordance with the observations of the High Court in C.R.P.No.111 of 2007. It was also held that the decree holder is at liberty to file fresh claim statement calculating 9% and 15% interest on the total enhanced land value as pointed out by the High Court in the order in C.R.P.No.111 of 2007. 4. Thereafter, the decree holder filed a claim statement wherein a total claim of Rs.9,13,741.06 was made. The judgment debtor filed a statement of account reiterating the earlier stand that they are not liable to pay any amount. 5. The executing court passed an order dated 2nd August 2008 holding that the statement filed by both parties are not acceptable as they are not in accordance with the decision reported in Sunder vs. Union of India (2001(3)KLT 489) and Gurpreet Singh vs. Union of India (2006(8) SCC 457). The statement filed by both parties were rejected. Both parties were directed to file fresh statement. It was also held that the statement made by the judgment debtor is also not acceptable. Thereafter, the court below held that the decree holder had WPC No. 30735/2009 4 appropriated the amount towards interest first and this is not correct in view of the fact that the judgment debtor had made various deposits specifically towards principal amount. Such a finding was not arrived at in the earlier order passed by the executing court dated 11th October 2007. On the other hand, in the order dated 11th October 2007, it was held that the judgment debtor has not deposited the entire award amount and that there is short fall in the deposit and therefore, the claimant is entitled to appropriate the amount deposited first towards interest and then to cost and then to principal amount. These findings apparently do not go together. One thing is clear that the executing court has not specifically arrived at a finding as to whether any particular deposit of a particular amount on a particular occasion was towards the principal amount. It is also not found whether the decree holder had appropriated a particular amount towards interest or principal amount on a particular occasion. Both parties did not make any attempt to mark any particular document relating to deposit of the amounts or regarding appropriation. The executing court could have allowed both parties to adduce evidence and to mark the WPC No. 30735/2009 5 relevant documents on their side, so that an effective, complete and correct adjudication could be made regarding the amount due from the judgment debtor to the decree holder. Therefore, I direct the executing court to consider the matter afresh in the light of the observations made above. Both parties are free to adduce further evidence and to produce such other documents which are relevant. In this order, I am not specifically setting aside Ext.P4 order dated 11th October 2007 or Ext.P7 order dated 2nd August 2008. I am also not inclined to confirm those orders as well. The whole matter shall be considered afresh by the executing court in the light of the relevant documents and also in the light of the findings rendered in C.R.P.No.111 of 2007 and the binding precedents. The executing court shall dispose of the matter expeditiously. K.T.SANKARAN, JUDGE csl