IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 CRP.No. 474 of 2011 ----------------------------- [EA.NO.714/09 IN E.P. NO. 327/2007 IN L.A.R. NO. 31/1986 OF PRINCIPAL SUB COURT, KOTTAYAM] .................... PETITIONERS/PETITIONERS/ADDL. DECREE HOLDERS: -------------------------------------------------------------------------------- 1. ALEYAMMA ABRAHAM, W/O. CHACKO ABRAHAM, CHERUMPALA HOUSE, ALAPPUZHA KARA, POOVANTHURUTH POST. 2. LISSY THOMAS, D/O. CHACKO ABRAHAM, CHERUMPALA HOUSE, ALAPUZHA KARA, POOVANTHURUTH POST. 3. SUJA JOHN, D/O. CHACKO ABRAHAM, CHERUMPALA HOUSE, ALAPPUZHA KARA, POOVANTHURUTH POST. 4. JESSY EAPPEN, D/O. CHACKO ABRAHAM, CHERUMPALA HOUSE, ALAPPUZHA KARA, POOVANTHURUTH POST. 5. BINDHU VINOD, D/O. CHACKO ABRAHAM, CHERUMPALA HOUSE, ALAPPUZHA KARA, POOVANTHURUTH POST. 6. P.A. JACOB, S/O. CHACKO ABRAHAM, CHERUMPALA HOUSE, ALAPPUZHA KARA, POOVANTHURUTH POST. BY ADVS. SRI.MATHEW JOHN, SRI.DOMSON J.VATTAKUZHY. C.R.P.NO.474/2011: RESPONDENT/RESPONDENT/JUDGMENT DEBTOR: -------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM - 686 001. BY GOVT. PLEADER SRI. K.C. VINCENT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. THOMAS P.JOSEPH, J. ==================================== C.R.P. No.474 of 2011 ==================================== Dated this the 03rd day of November, 2011 O R D E R Learned Government Pleader takes notice for the respondent. 2. The challenge is to the order dated 18.07.2011 on E.A. No.714 of 2009 in E.P. No.327 of 2007 in LAR No.31 of 1986 of the court of learned Sub Judge, Kottayam. Petitioners who are legal representatives of original decree holder sought execution of the award in LAR No.31 of 1986. Execution Petition No.327 of 2007 was closed on 26.06.2009 recording full satisfaction in the absence of petitioners and counsel. To review that order petitioners filed E.A. No.714 of 2009 with E.A. No.715 of 2009 to condone the delay. The executing court by order dated 06.01.2011 allowed E.A. No.715 of 2011 and condoned the delay. When E.A. No.714 of 2009 came up for consideration learned Sub Judge observed that the application is filed beyond the period of limitation, Section 5 of the Limitation Act (for short, “the Act”) has no application in execution proceeding, order dated 26.06.2009 is C.R.P. No.474 of 2011 -: 2 :- based on the calculation statement filed by parties, and that the lower court decree contained provision for interest on solatium but that was revised by this Court. Executing court also observed that excess amount was deposited by the respondents and that if petitioners are aggrieved by the order dated 26.06.2009 their remedy is to prefer revision or appeal. Holding so, the application for review - E.A. No.714 of 2009 was dismissed. That order is under challenge. 3. I have heard learned counsel for petitioners and the Government Pleader. 4. Learned Government Pleader has referred me to the earlier findings of the executing court based on the calculation statement of parties and contended that there is no reason for review of the order dated 26.06.2009. 5. I have been given a copy of the order dated 06.01.2011. It is seen that on E.A. No.715 of 2009 learned Sub Judge has condoned the delay in filing E.A. No.714 of 2009. This Court held in Kshemanidhi Kuries & Loans (P) Ltd. v. C.R.P. No.474 of 2011 -: 3 :- Ashokan and Others (2008 [4] ILR Kerala 499) that when application for review is filed out of time in the execution petition delay could be condoned under Sec.5 of the Act. However that question need not detain me since as aforesaid, on E.A. No.715 of 2009 delay has already been condoned and that order has become final. 6. On coming to the review of order dated 26.06.2009, I am persuaded to think that I need not go into the merit of the case. Admittedly petitioners or counsel were absent when the order was passed on 26.06.2009. It is not merely the existence of an error apparent on the record that justifies a review – a review is possible on other grounds stated in Order XLVII Rule 1 of the Code of Civil Procedure as well. In this case full satisfaction was recorded without hearing petitioners. I am inclined to give petitioners opportunity to prosecute E.P. No.327 of 2007 but without making any observation as to whether deposit made by the respondent would satisfy the decree or not which is a matter the executing court has to decide. Civil Revision is allowed. Order dated 18.07.2011 on E.A. C.R.P. No.474 of 2011 -: 4 :- No.714 of 2011 is set aside and that application will stand allowed. Consequently, order dated 26.06.2009 in E.P. No.327 of 2007 in LAR No.31 of 1986 will stand reviewed. The executing court shall hear petitioners also and pass appropriate orders as to whether the deposit made by the respondent satisfied the decree or not. Parties shall appear in the court below on 28.11.2011. THOMAS P. JOSEPH, JUDGE. vsv