IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 CRP.No. 636 of 2008(B) --------------------- ( AGAINST THE ORDER DATED 15/03/2008 IN EP 50/07 IN FDIA 1070/94 IN OS.99/1993 of SUBORDINATE JUDGE, VADAKARA) .................... REVN. PETITIONER: PETITIONER/DEFENDANT -------------------------------------- A.ABDULLA, S/O.SOOPPY, AGED 65 YEARS, P.B.NO.11580,MANAMA, BHARAIN CHOOLAYIL VEEDU, P.O. MAHE, MANJAKKAL, PONDICHERRY STATE. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: RESPONDENT/ PLAINTIFF ---------------------------------- P.V.ABDUL NISSAR, S/O.IBRAHIM, RASEENA MANZIL, NEAR MAHE GOVERNMENT HOSPITAL, MAHE.P.O. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.636 of 2008 ------------------------------- Dated this the 3rd September, 2008. O R D E R Petitioner is the defendant and respondent the plaintiff in O.S.No.99 of 1993, on the file of Sub Court, Vadakara. A final decree was passed whereunder petitioner is entitled to owelty amount of Rs.37,424/= for equalisation of shares. So also, under the decree, respondent is entitled to his share of profits at the rate of Rs.8984/= from 22.5.1993 to 23.10.1996. Petitioner filed E.P.No.50 of 2007 for realisation of the owelty amount due to him under the final decree. Respondent resisted the claim contending that under the decree, he is entitled to get Rs.30,695/= as his share of profits and that is liable to be adjusted from the Owelty amount, and what could be claimed by the petitioner is only the balance amount of Rs.6729/=. 2. Learned Sub Judge under the impugned order, dated, 15.3.2008, closed the execution petition recording that balance amount of Rs.6729/= was paid by the respondent to the CRP.No.636 of 2008 2 petitioner. This petition is filed under Section 115 of Code of Civil Procedure contending that the impugned order is illegal. 3. The argument of the learned counsel is that though respondent is entitled to share of profits of Rs.30,695/=, that claim is barred by time, and, therefore, petitioner is entitled to realise the entire owelty amount granted under the decree. As rightly found by the executing court, when petitioner is entitled to owelty amount from the respondent and respondent is entitled to share of profits from the petitioner under the very same decree. Hence what could be realised by the petitioner is only the balance, deducting the share of profits due to the respondent. It is not disputed that when owelty of Rs.37,424/= and share of profits is Rs.30,695/=, and hence, after adjusting the amount due, the amount payable is only Rs.6729/=. As that amount was paid during the execution petition, execution petition itself was closed. I do not find any illegality or irregularity in the order warranting interference. 4. The argument of the learned counsel for the CRP.No.636 of 2008 3 petitioner is that reason given by the court below is not correct. What was found by learned Sub Judge is that petitioner is not entitled to take the plea of limitation as a defence. But when the amount is payable by the respondent to the petitioner as owelty amount, and respondent is entitled to the share of profits, respondent is definitely entitled to adjust the amount due to him, and for that, petitioner is not entitled to raise a plea of limitation. The revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.