IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 25926 of 2009(O) -------------------------- AGAINST THE ORDER DATED 11.8.2009 IN E.A.NO.754/08 IN EP.339/00 IN OS.607/1989 of II ADDL.SUB COURT,THRISSUR ............... PETITIONERS: --------------- 1. JOSEPH.K.A., S/O.ANTONY, KUNNUMPURATH HOUSE, CHERPU VILLAGE, THRISSUR DIST. 2. DAVIES E.F., S/O.FRANCIS, EDATHIRUTHIKARAN HOUSE, CHERPU VILLAGE, THRISSUR DIST. 3. ANTO P.THOMAS, S/O.THOMAS, PULICKEN HOUSE, VALLACHIRA, THRISSUR DIST. BY ADV. MR.M.K.DILEEP KUMAR RESPONDENT: --------------- THE BRANCH MANAGER, CANARA BANK, WEST PALACE ROAD, THRISSUR, THRISSUR DIST. ADV. MR.N.D.PREMACHANDRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25926 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: E.P.NO.339/2000 IN O.S.NO.607/1989 DTD.7.6.2000. EXT.P2: JUDGMENT OF THIS HONOURABLE COURT IN O.P.NO.36486/2001 DTD. 5.6.2006. EXT.P3: E.A.NO.2281/2006 DTD.20.11.2006 FILED BY THE PETITIONER. EXT.P4: COMMISSION REPORT DTD.3.1.2007 GIVEN BY THE ADVOCATE COMMISSIONER TO THE PETITIONERS COUNSEL. EXT.P5: E.A.NO.541/2008 DTD.26.5.2008 FILED BY THE PETITIONERS. EXT.P6: PROCEEDINGS OF SECOND ADDL.SUB COURT, THRISSUR IN THE E.P.339/2000 FROM 14.8.2009 TO 7.9.2009 AS SEEN IN THE A-DIARY. RESPONDENT'S EXHIBITS: EXT.R1(a): DECREE INO.S.NO.607/1989 DTD. 14.11.1990 EXT.R1(b): EXTRACT OF THE ORDER IN E.A.NO.2281/2006 DTD.31.10.2007. EXT.R1(c): ORDER DATED 17.8.2009. EXT.R1(d): E.A.NO.754/2008. EXT.R1(e): ORDER DATED 11.8.2009. EXT.R1(f): STATEMENT OF ACCOUNT. EXT.R1(g): STATEMENT FILED BY THE RESPONDENT BANK. ........ // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.25926 Of 2009 ---------------------- Dated this the 17th day of September, 2010. J U D G M E N T The judgment debtors 1, 2 & 4 in E.P.No.339 of 2000 in O.S.No.607 of 1989 on the file of the Additional Sub Court, Thrissur are the petitioners in this writ petition filed under Article 227 of the Constitution of India. The first respondent bank filed the suit for realisation of money. Suit was decreed. The above said E.P. was filed for realisation of Rs.1,91,681/-. The petitioners filed a statement contending that they have paid major portion of the decree debt and only Rs.9,848/- was due to the decree holder. The execution court considered the statements filed by the bank as well as the judgment debtors and concluded that the statement filed by the decree holder is correct and acceptable. Execution court directed the judgment debtors to pay an amount of Rs.1,57,122/- to the decree holder. The petitioners did not pay the amount as ordered. The execution court found that petitioners have means to pay the debt and ordered arrest and detention in civil prison. 2. The petitioners challenged the order passed by the executing court by filing O.P.No.36486 of 2001 before this Court. W.P.(C).No.25926 Of 2009 ::2:: This Court set aside the order passed by the executing court dated 13.11.2001 quantifying the amount payable at Rs.1,57,122/- and set aside the order of arrest and detention of the petitioners in civil prison on condition that petitioners deposit in the bank an amount of Rs.75,000/- within one month from the date of receipt of a copy of the judgment in the court below. This Court also directed the learned Sub Judge to given reasonable opportunity to the petitioners to prove that the amount claimed in the statement filed by the decree holder is not correct. Taking into account the grievance of the petitioners this Court directed the learned Sub Judge to consider as to whether the amount paid by the petitioners were included in the statement filed by the decree holder or not. Ext.P2 is the judgment passed by this Court in the earlier O.P. dated 5.6.2006. After Ext.P2 judgment, the second judgment debtor filed a petition before the execution court praying to appoint an expert in accountancy to report about the correctness of the statement filed by the parties showing the payments made by the judgment debtors. Ext.P3 is the affidavit and the petition filed for appointment of the commissioner. Ext.P4 is the report of the commissioner. In Ext.P4 report the W.P.(C).No.25926 Of 2009 ::3:: commissioner reported the liability of the judgment debtors from the date of decree till the date of filing of the report. Commissioner reported that the total amount due to the decree holder as per the decree as on the date of filing of the report is Rs.86,777.73/-. Judgment debtors did not file any objection to the commissioner's report. The second petitioner herein filed E.A.No.541 of 2008 praying to give a further direction to the commissioner to file another statement. By order dated 17.8.2009, produced as Ext.R1(c) the execution court held that the prayer in the I.A. to give further direction to the commissioner to file another statement cannot be allowed. Therefore the court dismissed the said E.A. 3. The decree holder filed E.A.No.754 of 2008 stating that there occurred a mistake while calculating the interest. It is stated that 12% interest for the principal amount from 1.8.1999 is Rs.1,42,151/- whereas it has been recorded as 1,14,331/-. The prayer in the petition is for allowing the decree holder to amend the execution petition. The execution court by order dated 11.8.2009 disallowed the prayer. Ext.R1(c) is the order passed by the court. The court observed that since the W.P.(C).No.25926 Of 2009 ::4:: calculation of the statement ordered by the commissioner is not opposed by the parties, that the decree holder does not take a stand against what has been reported by the commissioner, the prayer of the decree holder was disallowed. 4. As I said earlier, the commissioner reported that the amount payable by the judgment debtors as on the date of filing of the report is Rs.86,777.73/-. The court, finding that both sides did not file any objection to the calculation done by the commissioner, accepted the amount as due to the decree holder as on the date of filing of the report. In the said circumstances, the court by order dated 27.8.2009 accepted the amount quantified by the commissioner finding that the said amount was not paid by the judgment debtors. The court on 17.9.2009 issued arrest warrant against the judgment debtors. I have stated in brief, the proceedings passed by the execution court in the E.P. This Court passed Ext.P2 judgment in a petition filed by the judgment debtors. As requested by the judgment debtors this Court granted opportunity to the judgment debtors to adduce evidence so as to show the correct amount due as per the decree. On that basis of the judgment debtors applied to the W.P.(C).No.25926 Of 2009 ::5:: execution court to appoint an expert on accountancy for the verification of the correctness of the statements filed by the parties showing the payment made by the judgment debtors. Commissioner filed Ext.P4 report. In the report the commissioner reported the correct liability from the date of decree till the filing of the report. The amount actually due as per the commissioner's report is Rs.86,777.73/-. The parties have not filed any objection to the commissioner's report. In the circumstances, subsequent orders were passed on 27.8.2009 and 7.9.2009 quantifying the amount due and ordering arrest warrant against the judgment debtors on their failure to pay the decree amount. In the facts and circumstances of the case, I find that no valid grounds are made by the judgment debtors in effectively challenging the orders passed by the execution court. I do not find any reason to interfere with the orders passed by the execution court in exercise of the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 5. Learned counsel for the petitioners submitted that during the pendency of the writ petition they have deposited Rs.26,501/- as directed by this Court. Learned counsel for the W.P.(C).No.25926 Of 2009 ::6:: bank on the other hand submitted that the petitioners did not comply with the interim order passed by this Court and did not deposit the amount. Whether the amount was deposited or not is a matter to be verified by the execution court. The learned counsel for the petitioners requested this Court to permit the petitioners to pay the balance amount in easy instalments. 6. This Court order that the order of the execution court ordering arrest and detention of the judgment debtors in civil prison shall be kept in abeyance if the petitioners deposit Rs.30,000/- within a period of one month from today and the balance amount in 5 equal monthly instalments. Rs.30,000/- shall be deposited on or before 20.10.2010 and the balance amount on or before 10th of every succeeding months. If the petitioners failed to deposit the amount as directed above, the order dated 27.8.2009 and 7.9.2009 of the execution court shall stand confirmed and the execution court can proceed with the execution of the decree. This judgment passed will not prevent the bank from entertaining any application from the judgment debtors under the One Time Settlement Scheme. If the judgment debtors submit any application seeking OTS benefits W.P.(C).No.25926 Of 2009 ::7:: within a period of two weeks from today, orders shall be passed on such application within a period of two weeks thereafter. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-