IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 OP(C).NO. 993 OF 2010(O) ------------------------------------- LAR.12/1999 OF PRINCIPAL SUB COURT,ERNAKULAM L.A.A. NO.135 OF 2002, HIGH COURT OF KERALA .................... PETITIONER: ------------------- CHUMMAR.V.C,VATTOLY HOUSE,B.M.C.P.O, KAKKANAD. BY ADV. SRI.E.M.JOSEPH RESPONDENT(S): ------------------------- STATE OF KERALA,REP.BY THE DISTRICT COLLECTOR,ERNAKULAM,KAKKANAD. BY GOVERNMENT PLEADER SHRI B. JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.993 of 2010 ==================================== Dated this the 03rd day of December, 2010 J U D G M E N T Government Pleader takes notice for respondent. 2. This petition is in challenge of the order passed by the learned Principal Sub Judge, Ernakulam on 29.11.2010 returning the execution petition “to cure defects within 7 days”. Learned counsel for petitioner states that an award was passed in favour of petitioner in L.A.R. No.12 of 1999 of the court of learned Sub Judge, Ernakulam which petitioner challenged in L.A.A. No.135 of 2002. That appeal was allowed on 16.07.2009. To execute the decree passed by this Court in L.A.A. No.135 of 2002 petitioner filed execution petition in the court below on 25.11.2010. On 29.11.2010 learned Sub Judge directed that defect in the execution petition be cured. Defect pointed out was that certified copy of decree in L.A.R. No.12 of 1999 was not produced along with the execution petition. That was replied by counsel stating that since petitioner is executing the decree in L.A.A. No.135 of 2002 it is not necessary to produce decree of the trial court (in O.P(C) No.993 of 2010 -: 2 :- L.A.R. No.12 of 1999). Based on the report of Sheristadar, learned Sub Judge has passed order dated 29.11.2010 returning the execution petition for curing defects which is under challenge. Learned counsel invited my attention to Rule 279 of the Civil Rules of Practice (for short, “the Rules”) and Rule 11(3) of Order XXI of the Code of Civil Procedure (for short, “the Code”). 3. Learned counsel has given me the original of execution petition (which was returned as defective as aforesaid) for my perusal and it is seen that what is sought to be executed is the decree dated 16.07.2009 of this Court in L.A.A. No.135 of 2002 and calculation of the amount claimed is made based on that decree. Though Rule 11(3) of Order XXI of the Code only says that the court to which an application is made under sub- rule (2) 'may' require the applicant to produce a certified copy of the decree, Rule 279 of the Rules states that the decree holder shall, together with the first petition for execution or for transmission of a decree file in court a certified copy of “the decree sought to be executed”. In the present case it is the decree dated 16.07.2009 in L.A.A. No.135 of 2002 which is sought to be executed. Principle of merger would also apply and decree O.P(C) No.993 of 2010 -: 3 :- of trial court in L.A.R. No.12 of 1999 stood merged in the decree of this Court in L.A.A. No.135 of 2002. Strictly speaking, decree of the trial court is no more in existence. But for calculation of costs or such other purpose it probably may require that certified copy of decree of the trial court is also produced. In cases of this nature where decree of the trail court has merged in the decree of appellate court, what the decree holder seeks is execution of the decree of appellate court and particularly in view of Rule 279 of the Rules, executing court need not have insisted on petitioner producing copy of decree of the trial court. If necessary for any purpose it was open to the executing court to direct the petitioner produce certified copy of the decree of the trial court whenever it was found necessary. Hence learned Sub Judge was not correct in returning execution petition for the reason that petitioner has not produced decree of the trial court. In the circumstances learned Sub Judge is directed to receive the execution petition in case it is not otherwise defective on the basis of certified copy of the decree dated 16.07.2009 of this Court in L.A.A. No.135 of 2002. It is made clear that if for any purpose decree of the trial court become necessary in the course of proceeding, it is open to the executing court to direct petitioner O.P(C) No.993 of 2010 -: 4 :- to produce certified copy of the decree of the trial court in L.A.R. No.12 of 1999 as well. Petitioner shall re-present the execution petition in the court below within a week from this day. Original Petition is disposed of with the above directions. THOMAS P. JOSEPH, JUDGE. vsv