IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 CRP.No. 293 of 2011() --------------------- AGAINST ORDER DATED 22/06/2010 IN EP 199/07 AND ORDER DATED 30.10.2010 IN EA NO.1211/2009 IN LAR.75/1995 of III ADDL.SUB COURT, ERNAKULAM .................... REVN. PETITIONER(S): PETITIONERS IN LAR: --------------------------------- 1. V.A.IYSHA, W/O.ABDUL KADER, AGED 75, ARAFATH, NETTOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM. 2. AHAMAD AZHAR, AGED 47, S/O.ABDUL KADER, DO. DO. 3. SHAMIM, AGED 44, D/O.ABDUL KADER, DO. DO. 4. NISHA AGED 38, D/O.ABDUL KADER, DO. DO. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT(S)/RESPONDENT IN LAR: --------------- STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KAKKANAD, ERNAKULAM. GOVERNMENT PLEADER SHRI K.K.SAIDELEVI THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.293 of 2011 -------------------------------------- Dated this the 22nd day of December, 2011. ORDER This civil revision is in challenge of order dated 22.06.2010 in E.P.No.199 of 2007 and order dated 30.10.2010 on E.A.No.1211 of 2009 in E.P.No.199 of 2007 in L.A.R.No.75 of 1995 of the court of learned Additional Sub Judge-III, Ernakulam. 2. Petitioners/decree holders filed E.P.No.531 of 2004 before the Additional Sub Judge-III, Ernakulam claiming a total sum of `7,55,034/-. As against that claim, respondent deposited `6,56,255/- and thereon the executing court closed E.P.No.531 of 2004 as satisfied by order dated 26.06.2006. Thereafter petitioners filed E.P.No.199 of 2007 claiming balance amount (allegedly) due to them as per the decree in L.A.R.No.75 of 1995. That execution petition was dismissed by order dated 22.06.2010 for the reason that E.P.No.531 of 2004 was closed as the decree is satisfied. That was followed petitioners filing E.A.No.1211 of 2009 to set aside (or to review as the case may be) the order dated 26.06.2006 in E.P.No.531 of 2004. Respondent opposed that application. Executing court dismissed E.A.No.1211 of 2009 for the reason that though E.P.No.531 of 2004 was closed as (execution petition is) satisfied, there was a prior order passed by the executing court as per which liability of respondent was fixed and hence the order on E.P.No.531 of 2004 can only be treated as closing the execution petition as the decree itself is satisfied. The order on E.A.No.1211 of 2009 is under challenge in this proceeding. CRP No.293/2011 2 3. Learned counsel for petitioners contend that closure of E.P.No.531 of 2004 was only for statistical purposes and hence E.P.No.199 of 2007 should be treated as one in continuation of E.P.No.531 of 2004. It is also argued that when a large amount was due to the petitioners, that they claimed only a lesser amount does not amount to waiver of their right to claim the balance amount. Reliance is placed on the decisions in Krishna Iyer Narayana Iyer v. Lekshmi Amma (1950 KLT 133) and Ittoop Philip, Areekkal Veedu v. Appukutta Menon and others (1996 AIHC 868). 4. Learned Government Pleader for the respondent has contended that the order on E.P.No.531 of 2004 that execution petition is closed as satisfied followed the order passed by the executing court fixing liability of respondent and hence the said order must be treated as an order closing the execution petition as the decree itself is satisfied. It is also argued that so far as order passed by the executing court fixing liability of respondent remains in force, petitioners are not entitled to claim any additional amount as done in E.P.No.199 of 2007. CRP No.293/2011 3 5. The decisions relied by learned counsel have no application to the facts of this case. Krishna Iyer Narayana Iyer v. Lekshmi Amma is concerned question whether the decree holder can be deemed to have waived his claim to the balance amount and whether the mistake cannot be allowed to be rectified. Ittoop Philip, Areekkal Veedu v. Appukutta Menon and others only said that when the former execution petition is closed for statistical purposes the subsequent execution petition must be treated as continuation of the former petition. 6. Question involved in the present case is different. The order on E.P.No.531 of 2004 that the said execution petition is closed as satisfied can be interpreted as meaning that the claim made in that execution petition is satisfied and does not by itself mean that the decree is satisfied. But a prior order passed by the executing court fixing liability of respondent stares at petitioners and without that order being interfered with, petitioners cannot contend that any further amount is due to them. 7. If petitioners have a contention that the amount fixed as due by the executing court in E.P.No.531 of 2004 is not correct they should have sought for a review of that order. Only if that order is reviewed and it is found that further CRP No.293/2011 4 amount is due, question of petitioners filing further execution petition arises. In that view of the matter I am inclined to give petitioners an opportunity to take appropriate steps in the matter. 8. In the light of what I have stated, I am inclined to set aside the order under challenge and remit E.A.No.1211 of 2009 to the court below for fresh decision. Resultantly this civil revision is allowed as under: i. Order dated 22.06.2010 in E.P.No.199 of 2007 in L.A.R.No.75 of 1995 and order dated 30.10.2010 on E.A.No.1211 of 2009 in E.P.No.199 of 2007 in L.A.R.No.75 of 1995 of the court of learned Additional Sub Judge-III, Ernakulam are set aside and that execution petition and application are remitted to the court below for fresh decision. ii. If so advised, it is open to the petitioners to seek review of the order in E.P.No.531 of 2004 fixing liability of respondent, as provided under law. CRP No.293/2011 5 iii. Executing court shall consider the above applications as provided under law after giving both sides an opportunity to give evidence if any necessary in the matter and pass appropriate orders as circumstances warranted. Parties shall appear in the executing court on 23.01.2012. THOMAS P.JOSEPH, Judge. cks