IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 OP(C).No. 2172 of 2011(O) ------------------------------------- [AGAINST THE ORDER DATED 30/03/2011 IN E.P.NO.140/2003 IN LAR.NO.50/1996 OF SUB COURT, SULTHAN BATHERY] .................... PETITIONER: ------------------- M/S. ELSTONE TEA ESTATES LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, T.B. KUNHIMAHIN HAJI, AGED 66 YEARS, S/O. MOIDEEN KUNHI, RESIDING AT MD'S BUNGALOW, ELSTONE TEA ESTATE, KALPETTA. BY ADVS. SRI.PIUS C.MUNDADAN, SMT.ANJU. D. RESPONDENT: ---------------------- STATE OF KERALA, REPRESENTED BY THE ASSISTANT COLLECTOR AND LAND ACQUISITION OFFICER, MANANTHAWADY, PIN – 673 141. BY GOVT. PLEADER SRI. T.K. SAJEEV. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C) 2172/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DECREE DTD. 13/12/2002 IN LAR 50/1996 OF THE SUB COURT, SULTHAN BATHERY. EXT.P.2: COPY OF THE E.P.NO.140/2003 ALONG WITH THE ATTACHMENT SCHEDULE. EXT.P.3: COPY OF THE JUDGMENT DTD. 31/05/2010 IN L.A.A. NO. 406/2003. EXT.P.4: COPY OF THE DECREE DTD. 31/05/2010 IN L.A.A. NO. 406/2003. EXT.P.5: COPY OF THE AMENDMENT APPLICATION E.A. NO. 7/2011 IN E.P.NO.140/2003 IN L.A.R. NO.50/1996. EXT.P.6: COPY OF THE BALANCE STATEMENT DTD. 10/01/2011 FILED BY THE DECREE HOLDER IN E.P.NO.140/2003 IN LAR.NO.50/1996. EXT.P.7: COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT STATE IN THE E.A. NO. 7/2011 IN E.P.NO.140/2003 ON 26/03/2011. EXT.P.8: COPY OF THE ORDER DTD. 30/03/2011 DISMISSING THE AMENDMENT APPLICATION NO.7/2011 IN E.P.NO.140/2003 IN LAR NO.50/1996. EXT.P.9: COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT OF INDIA DTD. 25/04/2011 IN SLP (CIVIL) NO.2821/2011. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2172 of 2011 --------------------------------------- Dated this 08th day of July, 2011 JUDGMENT Government Pleader takes notice for the respondent. 2. Petitioner obtained an award in L.A.R.No.50 of 1996 of the Court of learned Sub Judge, Sulthan Bathery for recovery of compensation and other reliefs. Ext.P1, decree was passed on December 13, 2002. Petitioner filed Ext.P2, E.P.No.140 of 2003 in the executing court on December 04, 2003 claiming Rs.48,63,828/- with future interest and cost. In the meantime, both sides preferred appeals in this Court and this Court passed Ext.P4, decree modifying the trial court decree (Ext.P1). As per Ext.P4 petitioner stood benefited as there was an enhancement of compensation. Pursuant to Ext.P4, decree of this Court petitioner filed Ext.P5, application for amendment of execution petition to make the execution petition in tune with Ext.P4, decree of this Court. That application was objected by respondent contending that the S.L.P filed in the Supreme Court against Ext.P4, decree is pending. Learned Sub Judge disallowed the application for amendment and observed that if the O.P(C).No.2172 of 2011 -: 2 :- amendment is allowed, it would mean that a claim of the year 2010 is incorporated in the execution petition filed in the year 2003. Learned counsel contends that yet another reason which persuaded the executing court to dismiss the application was pendancy of the S.L.P in the Supreme Court which now stand dismissed as seen from Ext.P9. It is contended that nothing prevented the executing court from amending the execution petition. I have heard learned Government Pleader also. 3. The executing court has stated that as per binding authorities even an application for execution can be amended at any stage of the proceeding. If that be so, there was no embargo to the executing court allowing the application for amendment. 4. No doubt, the decree of trial court merged in Ext.P4, decree of this Court and hence what is to be executed is the decree of appellate court. But, it is not as if petitioner should be asked to close the execution petition and file a fresh application for execution based on Ext.P4, decree. In Moideen Kutty Haji vs. Abdul Rahiman @ Bava Musaliar(1965 KLT 252) and Krishna Gopal Chawla Vs. Bava Musaliar (2002(1) KLJ (NOC) 31-SC), the trial court decree were confirmed in appeal. It was held that the execution petition (based on the trial court O.P(C).No.2172 of 2011 -: 3 :- decree) could be amended suitably and proceeded with. That principle must apply even when the appellate decree awards enhanced compensation. This is clear from the decision of the Division Bench of this Court in Meera Sahib and Ors. Vs. Lancilad.P.Gomez and Ors. (2001(2) KLJ 334), where it was held that even pending the E.P, the decree is reversed, varied or confirmed in appeal the pending E.P could be suitably amended. The enhanced compensation awarded to the petitioner as per Ext.P4, decree in which the trial court decree stands merged can be claimed in the pending execution petition by way of amendment. The only thing is that petitioner has to produce the copy of the appellate decree (which I am told is already done). If that be so, dismissal of the application for amendment cannot be sustained and is liable to be set aside. Resultantly this original petition is allowed. Ext.P8, order dated March 30, 2011 on E.A.No.7 of 2011 is set aside and that application will stand allowed. Petitioner shall carry out necessary amendment in the execution petition as prayed for in E.A.No.7 of 2011 within two weeks from the date on which a copy of this judgment is received in the executing court. Needless to say that respondent will get opportunity to file objection to the O.P(C).No.2172 of 2011 -: 4 :- amended execution petition. It is also open to the petitioner to file appropriate application for attachment and file schedule of articles to be attached for realisation of the amount as per the amended execution petition. If any such application is preferred executing court shall consider the said application and pass appropriate orders. (THOMAS P JOSEPH, JUDGE) Sbna/-