IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 CRP.No. 64 of 2011() ------------------------------- LAR.NO.20 & 21/1986 of II ADDL.SUB COURT,TRIVANDRUM .................... REVN. PETITIONER(S): PETITIONER IN E.A --------------------------------------------------------------- THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER RESPONDENT(S): DECREE HOLDERS IN E.A ------------------------------------------------------------------ 1. KUNJI AMMA RAJAMMA, MELE PUTHUVAL VEEDU, KAVALAKALAM NEYYATTINKARA, THIRUVANANTHAPURAM, PIN-695 121. 2. M.SAIKUMAR, KAVALAKALATHU MELE PUTHUVAL VEEDU, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN-695 121. R2 BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== C.R.P. No.64 of 2011 ==================================== Dated this the 18th day of November, 2011 O R D E R This revision is directed against order dated 21.08.2008 on E.A. No.480 of 2007 in E.P. No.269 of 2000 in LAR Nos.20 and 21 of 1986 of the court of learned Second Additional Sub Judge, Thiruvananthapuram. Petitioner-State-judgment debtor sought to recover from the respondents-decree holders in L.A.R. No.20 of 1986 the amount they allegedly received by way of excess. Application was dismissed by the learned Sub Judge by the impugned order. 2. In connection with acquisition of property, two cases were booked and the Land Acquisition Officer, apart from awarding land value awarded Rs.39,470/- as compensation for the building (in LAR No.20 of 1986) and Rs.3,560/- as compensation for the cow shed and portion of the boundary wall involved in LAR No.21 of 1986. Claimants being aggrieved by the compensation awarded sought reference under Sec.18(1) of the Land Acquisition Act. References were made and the same were taken on file as L.A.R. Nos.20 and 21 of 1986. The said cases were disposed of by C.R.P. No.64 of 2011 -: 2 :- a common judgment dated 28.01.1991. Apart from enhanced land value, the reference court held that “claimants together are allowed to recover and realize enhanced building and structure value of Rs.98,364/- apart from solatium and interest”. The said sum of Rs.98,364/- was later corrected as Rs.78,364/-. Petitioner deposited the said amounts and the same were withdrawn by the respondents. While so, claiming that there was mistake in calculation of the amount and that respondents herein have received Rs.1,48,290/- by way of excess, petitioner filed E.A. No.480 of 2007 in E.P. No.269 of 2007 (LAR No.20 of 1986). That application was dismissed by the learned Sub Judge by the impugned order stating that petitioner filed the application only to delay execution proceedings and to mislead the court. Learned Sub Judge took the view that a perusal of the decree would show that enhanced land value is Rs.72,114/- and building value is Rs.78,364/-. 3. It is pointed out by the learned Government Pleader that as per common judgment dated 28.01.1991, the sum of Rs.98,364/- (later corrected as Rs.78,364/-) was awarded to the claimants in L.A.R. Nos.20 and 21 of 1986 jointly as value of building and structure. But when the respective claimants filed C.R.P. No.64 of 2011 -: 3 :- execution petitions in the respective LAR cases, both claimed the sum of Rs.78,364/- and the State happened to deposit that amount with solatium and interest in both the execution petitions notwithstanding that claimants in LAR Nos.20 and 21 of 1986 were together entitled to get the sum of Rs.78,364/-. This aspect of the matter was not taken into account by the executing court, it is contended. 4. Learned counsel for respondents contended that it is after 14 years of respondents withdrawing the amount that petitioner has come up with E.A. No.480 of 2007. It is contended that recovery of the amount even if there is any excess payment, is barred by limitation. A further objection raised by the learned counsel is that no such application is preferred in LAR No.21 of 2008. 5. In view of the ultimate decision I propose to take in this proceeding I am not going into the question of limitation pleaded by the respondents. 6. So far as the other contentions are concerned, it is seen from the common judgment referred to above that the reference court permitted claimants together to recover the sum of Rs.98,364/- (later corrected as Rs.78,364/-). I must bear in C.R.P. No.64 of 2011 -: 4 :- mind that LAR Nos.20 and 21 of 1986 were disposed of by a common judgment. It appears to me that the direction that claimants together are allowed to recover Rs.78,364/- being the value of building and structure means that the claimants in both the cases together are entitled to the said amount. It is seen from the copy of execution petitions in LAR Nos.20 and 21 of 1986 that in both those execution petitions a claim for Rs.78,364/- with interest and solatium was made and accordingly amount was allegedly deposited by petitioner. In that view, it is certainly a matter which the executing court has to consider whether claim made by the respective claimants in the respective execution petition for Rs.78,64/- each with solatium and interest was allowable or not. 7. There is difficulty in the said issue being decided in this proceeding since petitioner has not made any claim in the execution petition filed in L.A.R. No.21 of 1986. Only with them also on the party array an adjudication of the said dispute can be made. Viewed in that line I am inclined to send back E.A. No.480 of 2007 with opportunity to the petitioner to file separate application in the execution petition in L.A.R. No.21 of 1986 as well subject of course to the contention which respondents may C.R.P. No.64 of 2011 -: 5 :- raise as to the period of limitation. Original Petition is allowed. Order dated 21.08.2008 is set aside and E.A. No.480 of 2007 in E.P. No.269 of 2000 in L.A.R. No.20 of 1986 of the court of Second additional Sub Judge, Thiruvananthapuram is remitted to that court for fresh decision. I make it clear that it is open to the petitioner to file separate application in the execution petition in L.A.R. No.21 of 1986 subject to the plea of limitation if any raised by the respondents in the proceeding. It is also made clear that the executing court has to decide the controversy finally and it will be open to the respondents to resist the applications on whatever grounds that are available to be them under the law. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv