IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 8365 of 2010(U) ---------------------------------------- LAR.7/1995 of SUB COURT, MUVATTUPUZHA .................... PETITIONER(S): ------------------------ JOY JOSEPH,AGED 79 YEARS,S/O.MATHAI, KOCHUPARAMBIL HOUSE,MANNATHUR KARA,THIRUMARADY VILLAGE,MUVATTUPUZHA TALUK,ERNAKULAM DISTRICT. BY ADV. SRI.K.C.ELDHO RESPONDENT(S): -------------------------- STATE OF KERALA,REPRESENTED BY DISTRICT COLLECTOR,COLLECTORATE,KAKKANAD.P.O, ERNAKULAM,COCHIN-682 030. BY GOVT. PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON 13/08/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.8365/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EXECUTION PETITION IN EP. NO.108/2008 IN LAR. 7 OF 1995 ON THE FLE OF THE SUB COURT, MUVATTUPUZHA. P2:- COPY OF THE DECREE DTD. 10.1.1997 IN LAR NO.7/1995 OF SUB COURT, MUVATTUPUZHA. P3:- COPY OF THE JUDGMENT DTD. 10.1.1007 IN LAR NO.7/1997 OF SUB COURT, MUVATTUPUZHA. P4:- COPY OF THE JUDGMENT DTD. 7.9.2007 IN LAA. NO.474/1998 AND CROSS OBJECTION NO.4/2006 OF THIS HONOURABLE COURT. P5:- COPY OF THE EA. NO.292/2009 IN EXT.P1 . P6:- COPY OF THE PROCEEDINGS AND CALCULATION STATEMENT DTD. 15.10.2009 IN EA. NO.292/2009 IN EP. 108/08 OF THE SUB COURT, MUVATTUPUZHA. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 8365 of 2010-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2010. JUDGMENT The decision taken in E.P.No.108/2008 in LAR No.7/1995 on the file of the Sub Court, Muvattpuzha, refusing to grant interest on solatium, is under challenge herein. The decree and judgment of the trial court have been produced as Exts.P2 and P3. The same was taken in appeal as L.A.A.No.474/1998, wherein a cross objection was filed by the petitioner and both were dismissed on 7.9.2009. Ext.P6 is the calculation statement prepared by the Execution Court wherein the balance amount is shown as Rs.42,325/- whereas, according to the petitioner, it should have been Rs.1,46,045/-. 2. Learned counsel for the petitioner submitted that interest on solatium was not granted by the Execution Court for the reason that Ext.P2 decree is dated 10.1.1997 which is prior to the date of judgment in Sunder v. Union of India {(2001) 7 SCC 211}. 3. It is pointed out that the reference court or the appellate court has not either expressly or impliedly rejected the claim for the grant of interest on solatium and hence the petitioner is entitled to get interest on solatium as wpc 8365/2010 2 held by the Apex Court in Sunder's case (supra). It is pointed out that the decree was passed in appeal which is after the date of judgment in Sunder's case and therefore the principle stated in the above decision clearly favours the petitioner. 4. The matter is squarely covered in favour of the petitioner in the light of the decision of the Apex Court in Gurpreet Singh v. Union of India {(2006) 8 SCC 457}. In para 54, the question whether the decree holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree, was considered and it was held thus: “It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would wpc 8365/2010 3 be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder (19-9-2001) and not for any prior period.” 5. Therefore, it is clear from the above that unless the claim is rejected expressly or by necessary implication as per the judgment and decree of the reference court or of the appellate court, the Execution Court can grant interest on solatium. Herein, the only reason for rejection of the claim is that the decree of the reference court is dated 10.1.1997. The Apex Court in the above decision clearly mentions the award as that of the reference court or that of the appellate court, which may have to be considered by the Execution Court. It was held that the Execution Court will be entitled to permit its recovery from the date of the judgment in Sunder's case {(2001) 7 SCC 211}. Herein also, the award does not expressly or by necessary implication rejects the claim for interest on solatium. Enhanced land value along with 30% solatium and interest on the compensation has been awarded. Since the decree of the trial court has wpc 8365/2010 4 merged with the decree of the appellate court, what is relevant for consideration, is the date of appellate decree, for granting the benefit of Sunder's case (supra). 6. In that view of the matter, the writ petition is allowed. Ext.P6 calculation statement is quashed. The matter will be reconsidered by the Execution Court and appropriate orders will be passed in accordance with the above findings. No costs. (T.R. Ramachandran Nair, Judge.) kav/