IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRP.No. 1211 of 2004() ---------------------- AGAINST THE ORDER DATED 05/02/2004 IN CA 105/03 IN EP 18/03 IN LAR.245/1990 of PRINCIPAL SUB COURT,KOCHI .................... REVN. PETITIONER(S): PETITIOENR/DECREE HOLDER. ---------------------------------------------- VINCENT JOSE, KALLUVEETTIL HOUSE, VAZHAPPALLY. BY ADV. SRI.P.P.THAMPI SRI.SOMAN P.PAUL RESPONDENT(S): JUDGMENT DEBTOR. ------------------------------- STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. BY ADV. SRI. T. K. SAJEEV, GOVERNMENT PLEADER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON 16/07/2009 PASSED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. ```````````````````````````````````````````````` C.R.P. NO: 1211 OF 2004 ```````````````````````````````````````````````` Dated this the 16th Day of July, 2009. O R D E R This C.R.P. is filed by the Petitioner/ Decree holder in C.A. No. 105 of 2003 in E.P. No. 18 of 2002 in L.A.R. No. 245 of 1990 on the file of Sub Court, Kochi. The facts of the case are briefly as follows: 2. 25 Ares of land was taken from the house compound of the petitioner for PV1 Canal. In L.A.R. 245 of 1990 he was allowed additional land value at Rs.11,000/- per Are and Rs.5,146/- for injurious affection of the remaining property with 30% solatium on the enhanced compensation and additional compensation at 12% per annum from 07.01.86 to 15.02.89 and costs. Execution proceedings was filed as E.P. 7/98 on 16.01.1998 for Rs.1,10,004.80. On 14.12.2000 an amount of Rs.86,934/- was deposited in court and E.P. was closed by the court. As on 14.12.2000 an amount of Rs.1,30,030.20 was due including the subsequent interest. Hence execution proceedings was filed afresh as E.P.18/2002 on 16.01.2002 C.R.P. NO: 1211 OF 2004 : 2 : for Rs.50,103.77. No objection was filed by the State for the execution proceedings. As the court ordered further steps a garnishee petition was filed. 3. There was no objection for the garnishee petition also and an amount Rs.55,338/- was attached and it was deposited in the court on 05.07.2003 by the garnishee. 4. The petitioner filed cheque application No.105/03 for the amount of Rs.55,338/- and also a statement showing the amount due on 11.12.2003. An objection was filed by the state for the cheque application claiming that there was only a balance of Rs.33,536/- due as per the decree. The petitioner had filed an argument note in the connection, but the court arbitrarily held that only Rs.33,536/- was due and dismissed the cheque application. Hence a fresh cheque application was filed for the amount so fixed without prejudice to petitioner's right to agitate for the correct amount. 5. Against that dismissal of C.A., the petitioner was filed this C.R.P. 6. Heard the learned counsel for the revision petitioner and learned Government pleader. C.R.P. NO: 1211 OF 2004 : 3 : 7. Learned counsel for the revision petitioner filed a statement showing the amount due as per the decree in L.A.R. 245 of 1990 on the file of Sub Court, Kochi as on 8.7.2009. According to that statement, the balance amount due to the decree holder is Rs.89,187.20. 8. Learned counsel for the revision petitioner invited my attention to the following decisions. “In Sunder Vs.Union of India (AIR 2001 SC 3516) held in Paragraph 23 of the Judgment, award amount could mean the amount of compensation worked out in accordance with provisions contained in Section 23 including all the sub sections thereof” and in paragraph 28 that “the person entitled to compensation awarded is also entitled to get interest on the aggregate amount including solatium. Megharaj V. Mrs. Baya Bai (AIR 1970 SC 161) reiterated the position of law and held that the normal rule that in the case of a debt due with interest any payment made by the debtor was in the first instance to be applied towards satisfaction of interest and thereafter the principal. The decision M/s. ICDSL Vs. Smitha Ben H. Pattel (AIr 1999 SC 1036) is “...... we hold that the general rule of appropriation of payments towards decreetal for amount is to be adjusted firstly strictly in accordance with the direction contained in the decree and in the absence of such direction, adjustments be made firstly in C.R.P. NO: 1211 OF 2004 : 4 : payment of interests and costs and thereafter in payment of principal amount. Such a principle is however, subject to one exception i.e., that the parties may agree to the adjustment of the payment in any other manner despite the decree. As and when such an agreement is pleaded the onus of providing is always upon the person pleading the agreement contrary to the general rule or in terms of the decree schedule. The provision of Section 59 - 61 of the Contract Act are applicable in cases where a debtor owes several distinct debts to one person and do not deal with cases in which principal and interest are due on a single debt.” It is well that the execution court cannot go behind the decree. 9. Learned Government pleader, invited my attention to the decision reported in Gurpreet Singh v. Union of India (2008 (1) KLJ (SC) 463), in which it was held “When an award decree is passed specifying the amounts under different heads as required under Sec.26 of the Act and the judgment - debtor state makes a deposit of specified sums under these different heads, it will amount to the judgment - debtor intimating to the decree holder as to how the sum deposited is to be applied, and decree holder will not be entitled to appropriate at his volition”. C.R.P. NO: 1211 OF 2004 : 5 : 10. Since the matter involves calculation and as the details of deposits are before the Sub Court, I am of the view that in the interest of justice, the matter has to be remanded back to Sub Court, Kochi for re-consideration of the matter in the light of latest position of law. Accordingly this C.R.P. is allowed and the order dismissing C.A. 105/03 is set aside and the matter is remanded back to Sub Court, Kochi to re-consider that C. A. afresh in the light of the latest position of law. Parties are directed to appear before that court on 20.8.09. M. L. JOSEPH FRANCIS, JUDGE. dl/