IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 CRP.No. 481 of 2011(A) --------------------------------- [EP.NO.66/1998 IN LAR.NO.20/1989 OF PRINCIPAL SUB COURT,KOTTAYAM] .................... REVISION PETITIONER/3RD PETITIONER/3RD DECREE HOLDER: --------------------------------------------------------------------------------------------- TONY SEBASTIAN, AGED 50 YEARS, PEEDIAKEL, ATHIRAMPUZHA, KOTTAYAM. BY ADV. SRI.R.SUDHIR. RESPONDENTS/ESPONDENT & PETITIONERS 1, 2 4 & 5 ADDL. 6 & 7/ JUDGMENT DEBTOR & DECREE HOLDERS: ---------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM-686 001. 2. MATHEW JOSEPH, PEEDIAKEL, ATHIRAMPUZHA (DIED). 3. TOM, S/O.JOSEPH, PEEDIAKEL, ATHIRAMPUZHA P.O., KOTTAYAM, PIN-686 562. 4. VINNY SEBASTIAN, PEEDIAKEL, ATHIRAMPUZHA P.O., KOTTAYAM, PIN-686 562. 5. SUMA CYRIAC, D/O.LATE JOSEPH, PEEDIAKEL, ATHIRAMPUZHA P.O.,KOTTAYAM, PIN-686 562. 6. CLARAMMA JOSEPH, W/O.LATE MATHEW JOSEPH, PEEDIAKEL, ATHIRAMPUZHA P.O.,KOTTAYAM, PIN-686 562. C.R.P.NO.481/2011-A: 7. SIBY JOSE, PEEDIAKEL, ATHIRAMPUZHA P.O., PIN-686 562. BY GOVERNMENT PLEADER SRI. K.C. VINCENT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.481 of 2011 -------------------------------------- Dated this the 22nd day of November, 2011. ORDER This civil revision is in challenge of order dated 29.06.2011 in E.P.No.66 of 1998 in L.A.R.No.20 of 1989 of the court of learned Principal Sub Judge, Kottayam. The dispute arises in execution as to what exactly is the further amount if any due to the petitioner. Both sides filed statement as to the balance amount if any due. Learned Sub Judge after considering the statements accepted the statement filed by 1st respondent and found that no further amount is due and accordingly the execution petition was closed recording full satisfaction. 2. Learned counsel for petitioner contends that learned Sub Judge was not correct in accepting the statement filed by 1st respondent to the extent that the mode of appropriation of amount deposited as per the interim order passed by the appellate court indicated in the statement of the 1st respondent filed much after the amount was withdrawn. Reliance is placed on the decision in Gurpreet Singh v. Union of India ((2006) 8 SCC 457) and in particular, directions contained in paragraph 52. 3. Learned Government Pleader would contend that the amount is being awarded by the reference court or appellate court on four heads, viz., land value, solatium, interest payable under Section 23(1A) of the Kerala Land CRP No.481/2011 2 Acquisition Act (for short, “the Act”) and interest payable on solatium. Learned Government Pleader would contend that it is within the power of the 1st respondent to indicate various heads to which the amount deposited has to be adjusted. It is also pointed out by the learned Government Pleader that the said question arises only in execution and not when the amount was deposited or withdrawn as per the interim order passed by the appellate court. Reference is made to paragraph 51 of the above referred decision. 4. It is not disputed that in this case, 50% of the amount awarded by the reference court was deposited by the 1st respondent as per the interim order passed by this Court in appeal and that amount was withdrawn by the petitioner during pendency of the appeal as per the order of this Court. It is also not disputed that while disposing of the appeal there was no direction to the petitioner regarding the manner of apportion of the amount deposited and withdrawn. Nor did the 1st respondent indicate the manner of appropriation while depositing the amount or when petitioner with notice to the 1st respondent withdrew the amount. The manner of apportion came only when parties were directed to file statements in the executing court as to balance amount if any payable. 5. Now I am to decide in the above backdrop whether contention raised by petitioner or the 1st respondent is to be accepted. In paragraph 52 of the decision above referred, situations of the nature as in this case is considered. It is held that in such situation, the amount deposited as per the CRP No.481/2011 3 interim order of the appellate court would be received by the decree holder on the strength of the interim order and apportionment will be subject to the decision in the appeal or in the further appeal and the direction if any contained therein. In such a case if the appeal is disposed of in favour of the decree holder, he would be entitled to appropriate the amount received by him pursuant to the interim order first towards interest, then towards cost and the balance towards principal as on the date of withdrawal of the amount and claim interest on the balance amount of enhanced compensation by levying execution. On the part appropriated towards the principal, interest would cease from the date on which the amount is received by the awardee. Of course, if while passing the interim order, the court has indicated as to how the deposited amount is to be appropriated, that direction will prevail and the appropriation could only be done on the basis of that direction. 6. Learned Government Pleader invites my attention to the observations in paragraphs 51 and 53 of the said decision. In paragraph 51 it is held that on the scheme of the Act especially the wordings of Secs.34 and 28 of the Act it is not possible to say that the approach made in Prem Nath Kapur v. National Fertilizers Corpn. Of India Ltd. ((1996) 2 SCC 71) is erroneous or is unreasonable or is not (sic) a line of approach that is not warranted. When the judgment debtor – State makes a deposit along with the calculation appropriating distinct sums towards various heads of compensation as awarded by the reference court or by the appellate court in the appellate decree, and the amount CRP No.481/2011 4 is received by the decree holder, he must be taken to be not entitled to seek an appropriation as if the judgment debtor has not made any intimation and that he is entitled to appropriate at his volition. In paragraph 53 it is observed, again referring to the decision in Prem Nath Kapur's case that if at a particular stage there is a shortfall, the awardee - decree holder would be entitled to appropriate the same on the general principle of appropriation, first towards interest, then towards costs and then towards the principal, unless ofcourse, the deposit is indicated to be towards specified heads by the judgment debtor while making the deposit intimating the decree holder of his intention. 7. Argument advanced by the learned Government Pleader that what is relevant in this proceeding is not appropriation of the amount first towards interest, then towards costs and then towards principal but appropriation towards various head of compensation such as land value, solatium, interest payable under Section 23(1A) of the Act and interest payable on solatium. 8. The above argument of learned Government Pleader, I am unable to accept for the reason that even for the said purpose there must be an indication either by the 1st respondent when it deposited the amount or a direction in the interim order pursuant to which the amount is deposited or atleast in the judgment disposing of the appeal. Admittedly no such thing happened in this case. In that view of the matter, it was within the right of petitioner to appropriate the amount deposited as per interim order passed by this Court in the way he has done and which finds support from paragraph 52 of CRP No.481/2011 5 the decision in Gurpreet Singh v. Union of India. 9. In the light of the above I am persuaded to accept the argument of learned counsel for petitioner that the question whether any further amount is due or not has to be decided in the light of appropriation made by petitioner and as referred to in paragraph 52 of the decision referred supra. The executing court shall decide whether any further amount is due in the light of the said appropriation and as directed in paragraph 52 of the said decision. Civil revision is allowed. Impugned order is set aside and E.P.No.66 of 1998 is remitted to the court of learned Sub Judge, Kottayam for fresh decision in the light of the observation made above and direction contained in paragraph 52 of the decision. Parties shall appear before the learned Sub Judge, Kottayam on 19.12.2011. I.A.No.2528 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks