IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 CRP.No. 1073 of 2004() ---------------------- AGAINST THE ORDER IN EP 38/2001 IN LAR.148/1997 of ADDL.SUB COURT,KOTTAYAM .................... REVN. PETITIONER: ------------------ STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, KOTTAYAM. BY GOVERNMENT PLEADER R.BINDU RESPONDENTS: ------------- MATHEW, S/O.AUGUSTHY, KOCHUPURACKAL HOUSE, NJEEZHOOR VILLAGE, THIRUVAMPADY KARA, VAIKOM. BY ADV. SRI.C.C.THOMAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------- C.R.P.No.1073 of 2004 ------------------------------------------- Dated this the 3rd day of March, 2008 ORDER This revision is preferred against the order of Subordinate Judge, Kottayam in E.P.No.38/01 in L.A.R.No.148/97. By the said order, the court below found that the judgment debtor is entitled to get interest on solatium and therefore, directed to pay balance amount of Rs.11,667/- to the decree holder. 2. The learned counsel for the Government contended before me that the court below has not considered regarding the deduction of the income tax to be made and therefore prays for a direction to the court below for a reconsideration. 3. Heard the learned counsel appearing for the decree holder also. 4. In the light of the decision of the Apex court reported in Gurpreet Singh vs. Union of India (2006(8) SCC 457) it is clear that unless the interest on solatium has been specifically negatived by the Land Acquisition Court or by the appellate court in the light of the decision in Sundar vs. Union of India CRP NO.1073/2004 2 (AIR 2001 SC 3516) the executing court is entitled to grant interest on solatium for the reason that the solatium also takes in the amount of compensation. The Apex court in the case referred to in Gurpreet Singh vs. Union of India [(2006)8 SCC 457] held as follows: “it is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree or the Reference court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder case, (2001) 7 SCC 211, on the ground that the execution court cannot go behind the decree. But if the award of Reference court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference court or the appellate court, and merely interest of compensation is awarded, it would be open to the execution court to apply the ratio of Sundars' case and say that the compensation awarded includes solatium and in such an event interest of the amount would be directed to be CRP NO.1073/2004 3 deposited in execution. Otherwise, not. Such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of judgment in Sunder (19-9- 2001) and not for any prior period”. Therefore, the court below has to apply these principles and find out whether solatium has to be granted or not or whether it has to be restricted from a particular date namely 19.9.2001. 5. The learned Government Pleader has further contended that the factum of deduction of income tax has not been considered by the court below and she has referred to the two decisions of this Court in State of Kerala vs. Mariyamma (2005 (1) KLT 173) and State of Kerala vs. Mariyamma (2005(2) KLT 587) which is a suo motu review of the earlier judgment. The court below is directed to apply the principles laid down in the reviewed judgment and decide the question of deduction of income tax by the state. 6. In the light of these discussions, the order under challenge requires interference. Therefore, the order is set aside and the matter is remitted back to the court below for fresh CRP NO.1073/2004 4 consideration in accordance with law in the light of the enunciated principles referred to above. Parties are directed to appear before the court below on 1.4.2008. The Civil Revision Petition is disposed of as above. M.N.KRISHNAN, JUDGE csl