IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 23000 of 2008(K) -------------------------- AGAINST THE ORDER DATED 01/03/2008 IN EP 88/2005 IN ARC.185/2000 of MUNSIFF COURT, PERAMBARA .................... PETITIONER: ------------ MEPPAYUR CO-OP HOUSING SOCIETY LTD. NO.D. 1392,MEPPAYUR P.O.,KOZHIKODE REPRESENTED BY SECRETARY BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENT: ------------- E.K.BALACHANDAN CHALLIL HOUSE, PERAMBRA, KOZHIKODE BY ADV. SRI.P.N.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 23000 OF 2008 =========================== Dated this the 13th day of August, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India challenging Ext.P8 order, by the decree holder. Respondent is the judgment debtor. As per Ext.P1 award respondent is to pay Rs.93571/- with interest at 17.2% on Rs.92,928/- from 1.3.2000 with cost. The award is dated 9.10.2000. Under Ext.P8 order, learned Musiff fixed the balance amount due at Rs.28,469/- and directed respondent to pay the same in four equal monthly instalments. The petition is filed contending that the amount calculated by the court is unsustainable and what is done by the executing court is deducting the amount paid towards the principal amount and thereby denying the interest legally due to the decree holder. 2. Learned counsel appearing for petitioner and respondent were heard. W.P.(C023000/2008 2 3. On going through Ext.P8 order, it is clear that learned Munsiff did not fix the amount in accordance with the award, after properly adjusting the payments made by the respondent. It is true that the statement filed by the decree holder as well as the judgment debtor cannot be accepted. But that does not mean that court is not to fix the correct amount due. When part of the payment covered under the decree is made, decree holder is entitled to adjust that amount first towards the cost and then towards the interest payable and the balance to the principal. 4. Learned counsel for the respondent argued that interest payable under the award is only simple interest and the execution court calculated the total interest payable and deducted the amount paid by respondent towards interest and therefore there is no error in the calculation. As rightly pointed out by the learned counsel appearing for petitioner, when payments are made not on a particular day but on different occasions W.P.(C023000/2008 3 the method of adjusting the payment towards the interest as done by the learned Munsiff cannot be accepted. When a part of the payment is made subsequent to the award, interest as on that date has to be calculated and it is to be added to the principal amount and thereafter the payment made is to be deducted first towards the interest and then towards the principal amount and again when the second payment is made interest has to be calculated as on that date and payment is to be accounted and the actual amount is to be worked out. As the learned Munsiff has not done so, Ext.P8 order is quashed. Execution court is directed to fix the amount correctly and proceed with the execution in accordance with law. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006