IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRP.No. 1210 of 2004() ---------------------- AGAINST THE ORDER DATED 23/03/2004 IN EA 349/03 IN EP 72/02 IN LAR.99/1990 of PRINCIPAL SUB COURT,KOCHI .................... REVN. PETITIONER(S): PETITIONER/DECREE HOLDER. ---------------------------------------------- KURIAKOSE JOY, THOTTATHIL HOUSE, VAZHAPPILLY KARA. MULAVOOR VILLAGE. BY ADV. SRI.P.P.THAMPI SRI.SOMAN P.PAUL RESPONDENT(S): JUDGMENT DEBTOR. -------------------------------------------------------- STATE OF KERALA, SPECIAL TAHSILDAR (LA), P.V.I.PROJECT, PERUMBAVOOR, REP. BY THE DISTRICT COLLECTOR, ERNAKULAM. BY SRI. T. K. SAJEEV, GOVERNMENT PLEADER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON 16/07/2009 PASSED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. `````````````````````````````````````````` C.R.P. NO: 1210 OF 2004 ``````````````````````````````````````````` Dated this the 16th Day of July, 2009. O R D E R This C.R.P. is filed by the decree holder against the order dated 23.3.04 dismissing E.A. 349 of 2003 and E.P. 72 of 2002 in L.A.R. 99 of 1990 on the file of Sub Court, Kochi. The facts of the case are briefly as follows: 2. In the decree dated 27.2.1992 in the case, enhanced land value of Rs.15,623/- per are for 8.48 ares, Rs.3,500/- for fragmentation and severance, Rs.300/- timber value for 2 coconut trees, Rs.4404/- for construction of kayyala and Rs.18,583/- per are for 0.80 ares less Rs.4050/- received as capitalized value, 30% solatium on enhanced land value together with amounts calculated at 12% p.a. On such market value from 21.2.1986 to 14.2.89 and interest at the rate of 9% p.a., for one year and thereafter 15% p.a. on the excess compensation till deposit was awarded. 3. E.P. 105 of 1993 was filed for Rs.3,93,445/- On deposit of C.R.P. NO: 1210 OF 2004 : 2 : Rs.1,96,723/- on 31.5.1999 the E.P. was dismissed. Fresh E.P. 103 of 1996 was filed for balance and subsequent interest of Rs.2,95,260/- in which on 31.5.1999 Rs.2,11,573/- was deposited, and a statement filed showing how the amount was arrived at. No interest was given on solatium, compensation for injurious affection, timber value, cost of construction of kayyala and increase in marked value u/s 23 1 (A) amounting to Rs.56,050/- in all although it is provided by the decree. On 16.6.1999 the petitioner filed a balance statement as per which a balance of Rs.66,500/- was due. ON 30.3.2000 an objection was filed by the judgment debtor in E.P. 103 /1996 incorporating a calculation statement and stating there is an excess payment of Rs.22,970/- upholding which and relying on the decision (1996) 2 SCC 71 (1988) KLT 812 the EP was dismissed holding that there is an excess payment of Rs.21,930/- against the well established principle that the executing court cannot go behind the decree. If there is any mistake in the decree it is to be corrected in appeal. The execution court is to be go by the decree. 4. A fresh E.P. was filed as E.P. 72/02 on 7.8.02 for an amount of Rs.2,94,192/- A balance statement was filed on 21.10.2003 C.R.P. NO: 1210 OF 2004 : 3 : in the E.P. as per which Rs.3,30,652.98 was due for which a counter dated 29.10.03 was filed styled as balance statement / objection admitting a balance of Rs.57,000/- as on 31.5.1999. At the very same time pointing that no appeal / revision was filed from the order holding that there was an excess payment. A petition for review of the order dated 11.10.2000 was filed on 12.11.2003. The review petition was dismissed and in the result the E.P. too was dismissed. 5. Heard the learned counsel for the revision petitioner and learned Government pleader. 6. Learned counsel for the revision petitioner submits that there is a duration of 12 years for execution and the court had committed a fundamental mistake in not allowing interest on amount allowed by the decree. Learned counsel for the revision petitioner invited my attention to the following aspects of the matter: Interest was given on solatium even before the 1984 amendment of the act as could be seen from the Simon Vs. State 1978 KLT 75 B which has said “It is thus clear that the solatium provided by sub section (2) is part of the compensation i.e., envisaged in sub section (1) of the Act. The constitution bench decisions of Sunder Vs. Union of India (AIR 2001 SC 1536) as well as C.R.P. NO: 1210 OF 2004 : 4 : Gurjeet Singh Vs. Union of India (2006) 8 SCC have held interest as payable on all amounts allowed u/s 23(1) of the LA Act. As per the decision in Maegharah Vs. Mrs. Baya Bai (AIR 1970 SC 161), M/s. ICDs Ltd., Vs. Smitha Ben H. Pattel (AIR 1999 SC 1036) and (2006 8 SCC 457) payment are to be appropriated first to interest and costs. Interest is allowed on all amounts allowed by the decree. The decree passed is perfectly right. The decision in Lilly Thomas Vs. union of India (AIR 2006 SC 1650) has held interpretation of a provision of law relates back to the date of law itself. It has been held by the SC in AIR 1983, SC 1576 the State Government must do “What is fair and just to the citizen and should not as far as possible take up a technical plea to defeat the legitimate and just claim of the citizen”. 7. Learned Government pleader, invited my attention to the decision reported in Gurpreet Singh v. Union of India (2008 (1) KLJ (SC) 463), in which it was held “When an award decree is passed specifying the amounts under different heads as required under Sec.26 of the Act and the judgment - debtor state makes a deposit of specified sums under these different heads, it will amount to the judgment - debtor intimating to the decree holder as to how the sum deposited is to be applied, and decree holder will not be entitled to appropriate at his volition”. C.R.P. NO: 1210 OF 2004 : 5 : 8. Since the matter involves calculation and as the details of deposits are before the Execution Court, I am of the view in the interest of justice the matter has to be remanded back to the Sub Court for re- consideration of the matter in the light of the latest position of law. Accordingly this C.R.P. is allowed and the order dismissing E.A. 349 of 2003 and E.P. 72 of 2002 in L.A.R. 99 of 1990 on the file of Sub Court, Kochi are set aside and the matter is remanded back to re- consider the same afresh in the light of latest position of law. Parties are directed to appear before the court on 20.8.09. M. L. JOSEPH FRANCIS, JUDGE. dl/