IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 26904 of 2010(O) -------------------------- OS.141/2001 of PRL.MUNSIFF COURT I.KOZHIKODE .................... PETITIONER: --------------- V.ANILKUMAR,AGED 42 YEARS, S/O.V.CHATHUKUTTY,KASALA AMSOM,DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENTS/RESPONDENTS IN E.A/DECREE HOLDERS: ------------------------------------------------ 1. ABDUL KAREEM,AGED 51 YEARS, S/O.ABDUL RAHIMAN,TRADER,RESIDING AT PALERI HOUSE, KANNUMKARA AMSOM,NELLACHERI DESOM, KOZHIKODE-673 571 2. SUHARA,AGED 41 YEARS, W/O.ABDUL KAREEM,RESIDING IN -DO- -DO- THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26904 of 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : E A No. 41 OF 2009 EXHIBIT P2 : ORDER IN E A 41/2009 DTD. 07.08.2010 RESPONDENTS' EXHIBITS: NIL True Copy P A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.26904 of 2010 --------------------------------------- Dated this 30th day of August, 2010 JUDGMENT Judgment debtor in E.A.No.41 of 2010 in E.P.No.322 of 2007 in O.S.No.141 of 2001 of the court of learned Principal Munsiff-I, Kozhikode is the petitioner before me. He suffered a decree for surrender of vacant possession of the shop room to the respondents/decree holders with payment of arrears of license fee. Petitioner was directed to pay respondents Rs.46,000/- with interest @ 6% per annum from 11-07-2001 till realisation. Respondents were also found entitled to recover @ 11,500/- per month from 11-07-2001 till surrender of vacant possession with interest @ 6% per annum apart from cost of Rs.5326/-. Pursuant to the decree respondents initiated execution proceedings and it is not disputed that petitioner has paid certain amount. In the meantime petitioner has surrendered possession of the shop room to the respondent. Petitioner filed E.A.No.41 of 2010 contending that there is excess payment of Rs.30,000/-. It was also contended that decree exceeded pecuniary limit of jurisdiction of the trial court. Executing court found against those contentions and dismissed E.A.No.41 of 2010 which is under challenge. Learned counsel for W.P.C.No.26904 of 2010 : 2 : petitioner contends that there is no decree allowing respondents to recover damages @11,500/- from 11-07-2001 till date of surrender and what is given by the decree is only a declaration of right of respondent which is not executable. Learned counsel has placed reliance on the decision of the Supreme Court in State of Madhya Pradesh Vs. Mangilal Sharma (AIR 1998 SC 743). 2. Learned counsel given me a copy of the decree. The relevant portion reads as under: “The plaintiff do hereby entitled to recover @ Rs.11,500/- per month from 11-07-2001 till date of cessation of the occupation of the building by the defendants with interest thereon @ 6% per annum”. True, it is not specifically stated that respondents/plaintiffs are permitted to recover the said amount from petitioner. But, it is stated that respondents “do hereby entitled to recover” the said amount from petitioner. Argument is that the said relief is only declaratory in character and does not enable the respondent to recover the amount. It is in support of that contention that decision of the Supreme Court cited above is relied. 3. The decision cited related to a suit for reinstatement of a retrenched employee into the service. There, decree was passed in the following terms. W.P.C.No.26904 of 2010 : 3 : “Plaintiff's suit is decreed with costs and it is declared the plaintiff is still in continuance service of defendant and his services are not terminated”. Pursuant to that decree the reinstated employee wanted to get arrears of salary which of course was found against observing that the decree is declaratory in character and does not enable the reinstated employee to recover arrears of salary. That decision has no application to the facts of this case. Here the relief which I have extracted is not merely declaratory in character and states that respondents are entitled to recover compensation at the rate aforesaid from the petitioner. It is not the particular wording in the decree that gives power to the executing court. Executing court gets the power from the statute. This court in Gopinathan Nair Vs. Madhavan (1984(1) ILR (Kerala) 465) has held that even when the decree contains no direction to execute the decree, it can be executed. Here, position is better where respondents are found, “entitled to recover” the amount from petitioner. That enabled respondents to recover the amount and conferred power on executing court to recover the amount. 4. Petitioner has a contention that decree for recovery of Rs.11,500/- from 11-07-2001 was not sought for in the plaint. That however is not a matter which the executing court is required to go W.P.C.No.26904 of 2010 : 4 : into. Having heard counsel I do not find any infirmity in the order requiring interference. Writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-