IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 CRP.No. 1401 of 1998(H) ----------------------- (OS.21/1984 of PRL.SUB COURT, KOZHIKODE) .................... REVN. PETITIONER - DECREE HOLDER/PLAINTIFF: ------------------------------------------------------------------------- THIRUVAZHIYODE LEELAVATHY AMMA, D/O.V.M.SANKUNNI MENON, RESIDING IN THIRUVANNUR AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE RESPONDENTS - JUDGMENT DECTORS/DEFENDANTS: ------------------------------------------------------------------------------ 1. T.KARUNAKARA MENON, S/O.SANKUNNI MENON, RESIDING AT PANNIAMKARA AMSOM AND DESOM OF KOZHIKODE TALUK. 2. YESODA, W/O.KARUNAKARA MENON, RESIDING AT DO. DO. 3. K.P.HARIDASAN, S/O.KARUNAKARA MENON, RESIDING AT DO. DO. 4. K.P.RAMADASAN, S/O.KARUNAKARA MENON, RESIDING AT DO. DO. 5. K.P.INDIRA, D/O.KARUNAKARA MENON, RESIDING AT DO. DO. 6. K.P.NIRMALA, D/O.KARUNAKARA MENON, RESIDING AT DO. DO. R3, 4, 5 & 6 BY ADV. SRI.C.P.CHANDRASEKHARAN (CALICUT) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.N. KRISHNAN, J. ........................................... C.R.P.NO.1401 OF 1998 ............................................. Dated this the 3rd day of January, 2011. O R D E R This revision is preferred against the order of dismissal of E.P.No.69/1996 in O.S.No.21/1984. The trial court had dismissed the E.P on the ground that it had allowed amendment of the counter filed as E.A.No.718/1997 and as amendment is carried out, the E.P has been dismissed as infructuous. I feel that there is total misapplication of mind by the learned Subordinate Judge, who has passed the order. 2. The brief facts of the case would reveal that in a suit for realisation of the amount, the trial court by virtue of its judgment dated 28.2.1986 had granted a decree in favour of the plaintiff to realise from the first defendant an amount of Rs.1,13,393.26 with 18% interest per annum from the date of filing of the suit, till realisation. Aggrieved by the dis allowance of the amount claimed in the plaint, the plaintiff has preferred an appeal before this court as A.S.No.275/1986. In the said appeal, a Division Bench of this Court negatived the plea of discharge pleaded by the defendants and granted a decree for realisaon of an amount of Rs.1,49,000/=. The : 2 : C.R.P.NO.1401 OF 1998 amended copy of the decree would reveal that interest was granted at the rate of 18% from the date of suit till realisation. Originally an application for execution was filed as E.P.No.1/1987 wherein it appears that the judgment debtor paid an amount of Rs.1,98,476/= and thereafter full satisfaction was recorded. It has to be stated that E.P.No.1/1987 was disposed of at a stage when the appeal was pending before this Court. Only by virtue of the judgment and decree of this Court, the plaintiff was entitled to realise a sum of Rs.1,49,000/= with 18% interest on the said sum from the date of suit till realisation and so it is for the recovery of that amount the EP was filed. The approach of the executing court to close the present EP on the basis of the previous EP cannot be in order because there is considerable change of amount by virtue of the appellate judgment and decree. I am not stating anything about the correctness of the amount at this stage for the reason that it is for the executing court to decided that matter. 3. Therefore, the order under challenge is set aside and the execution petition is restored to file and the court shall : 3 : C.R.P.NO.1401 OF 1998 hear both the parties and dispose of the execution petition in accordance with law. Parties are directed to appear before the executing court on 14.02.2011. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : C.R.P.NO.1401 OF 1998 M.N. KRISHNAN, J. ........................................... C.R.P.NO.1401 OF 1998 ............................................. 3rd January, 2011. O R D E R