IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 34835 of 2009(O) --------------------------------------- [ E.A. NO.353/2009 IN EP.NO. 264/2007 IN OS.NO.965/2001 OF PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA] .................... PETITIONER: ------------------- OMANA, D/O.PONNAMMA, AGED 50, THAIPARAMBIL, ASWATHY BHAVAN, ALAPPUZHA MURI, ALAPPUZHA WEST VILLAGE. BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.M.D.SASIKUMARAN, SRI.GEORGE MATHEW. RESPONDENT: --------------------- CHACKO JOSEPH, S/O.CHACKO, AGED 58, KOMBATHANPARAMBIL, VADAKKAL MURI, ALAPPUZHA WEST VILLEGE. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34835/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 13/02/2007 IN A.S. NO. 45/2004 OF THE SUB COURT, ALAPPUZHA. EXT.P.2: COPY OF THE E.P. NO. 264/2007 DTD. 12/11/2007. EXT.P.3: COPY OF THE OBJECTION DTD. 07/02/08. EXT.P.4: COPY OF THE E.A. 353/09 FILED BY THE RESPONDENT DTD. 19/08/09. EXT.P.5: COPY OF THE ORDER DTD 25/09/09 IN E.A. NO. 353/2009 IN E.P. NO. 264/2007 IN O.S. NO. 965/2001 OF THE MUNSIFF'S COURT, ALAPPUZHA. EXT.P.6: COPY OF THE E.A. 482/2009 FILED BY THE RESPONDENT ON 03/11/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C).NO.34835 OF 2009 ------------------------------- DATED THIS THE 2ND DAY OF NOVEMBER, 2010 JUDGMENT Petitioner is the plaintiff in O.S.No.965/01 on the file of the Pricipal Munsiff's Court, Alappuzha. Respondent herein is the defendant in the suit. The suit was filed against the respondent for realisation of money. The trial court decreed the suit as prayed for and allowed the plaintiff to realise an amount of Rs.80,750/- with 12% interest on the principal amount of Rs.50,000/- from the date of suit till the date of decree and 6% interest from the date of decree debt till realisation with costs. In the appeal preferred by the defendant the Appellate Court modified the decree. The Appellate Court directed the defendant to pay a lump sum amount of Rs.25,000/- to the plaintiff within three months from today, failing which the plaintiff will have every right to realise the total sum of Rs.92,238/- together with interest at the rate of 12% per annum on the principal amount of Rs.50,000/- from the date of suit -2- WP(C).No.34835/09 with costs from the defendant and his assets. That seems to be very strange. At the same time, the decree passed by the Appellate Court has become final, since the plaintiff did not care to prefer any further appeal. Ext.P1 judgment would show that the defendant is permitted to pay Rs.25,000/- within three months. Instead of paying the entire decree amount, only if Rs.25,000/- is not paid within three months, the plaintiff was allowed to realise the entire amount. The defendant did not pay the amount within three months as directed in Ext.P1. The plaintiff filed E.P.No.264/07 for realising the amount as per Ext.P1. Ext.P2 is the copy of the execution petition. While the E.P. was pending, the defendant filed E.A.No.353/09 seeking to allow him to pay Rs.25,000/- towards the the satisfaction of the decree. His explanation for not paying the amount of Rs.25,000/- within three months was accepted by the execution court. The execution court passed an order in the E.A. directing the judgment debtor to pay or deposit an amount of Rs.25,000/- with interest at the rate of 12% per annum on the -3- WP(C).No.34835/09 principal amount of Rs.50,000/- from 13/2/2007 till the date of deposit or payment on or before the next posting date for payment to 5/10/09. Ext.P5 is the order passed by the execution court which is under challenge. The execution court in Ext.P5 found that there is no compliance of the deposit as directed in Ext.P1 decree and hence there is non-compliance of Order XXI Rule I of the C.P.C. The execution court has got the authority to give life and enforceability to the spirit of the decree and not defeat it on technical grounds. The decree passed by the Lower Appellate Court is very clear. The decree gave concession to the defendant to pay Rs.25,000/- within three months, if not paid, to pay the entire decree amount as per the decree. For whatever reasons best known to the defendant, he did not deposit or pay the amount to the decree holder within three months. Since the amount was not paid within three months, the latter part of the decree is to be followed and enforced by the execution court. In such circumstances, the execution court has no authority to permit the judgment debtor to -4- WP(C).No.34835/09 pay Rs.25,000/- and interest towards the satisfaction of the decree. The decree holder is entitled to realise the entire amount as per Ext.P1 decree. The learned counsel for the decree holder submitted that the defendant/judgment debtor did not even care to comply with the direction contained in Ext.P1 decree. It is submitted that even now the amount ordered by the court in lieu of the decree amount was not paid till date. Ext.P5 order was passed against the letter and spirit of the decree. Therefore, Ext.P5 order is set aside. The execution court shall proceed with the E.P. to realise the amount as per Ext.P1 decree. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv.