IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).NO. 601 OF 2010(O) -------------------------------------- AGAINST THE ORDER IN EP 3/1997 IN OS.29/1989 OF ADDL.DISTRICT COURT-I,MAVELIKKARA .................... PETITIONER: ------------------- A.SAINULLABDEEN, S/O. HYDROSE KUNJU, RESIDING AT AMMAMIYYA, KILIKOLLOOR,KOLLAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE SUPERINTENDEING ENGINEER, PAMPA IRRIGATION PROJECT CIRCLE, CHENGANNUR. BY GOVERNMENT PLEADER SHRI B. JAYASURYA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.601 of 2010 ==================================== Dated this the 16th day of November, 2010 J U D G M E N T Decree holder in E.P. No.3 of 1997 in O.S. No.29 of 1989 of the court of learned Additional District Judge-I, Mavelikkara is the petitioner before me. He is aggrieved by Ext.P6, order dated July 3, 2010 on E.A. No.28 of 2008 filed by the judgment debtor claiming refund of a sum of `.13,517.18 Petitioner preferred his objection to the said application and filed Ext.P5, statement as per which the excess amount payable by him is only `.3,785/-. Learned Additional District Judge accepted statement filed by the respondent and by Ext.P6, order directed petitioner to refund `.13,517/- to the respondents. That order is under challenge. Learned counsel for petitioner contends that learned Additional District Judge was under a wrong impression that date of decree for the purpose of calculation of interest is the decree of the trial court when admittedly that decree merged in the decree of this Court as seen from Exts.P1 and P2, judgments. It is also argued by the learned counsel that acceptance of Ext.P5, statement of respondents is not correct. Learned Government Pleader while O.P(C) No.601 of 2010 -: 2 :- supporting the order contended that entire amount was deposited though as per the order of this Court in A.S. No.375 of 1997 during the time the appeal was pending in this Court and that amount was received by petitioner even before the appeal was disposed of. Hence there is no justification in claiming interest on the amount deposited and received by petitioner till date of decree of this Court in A.S. No.375 of 1997. 2. Exhibit P1, judgment for payment of money was passed by the trial court against respondents on October 26, 1995. Respondents filed A.S. No.375 of 1997. That appeal was disposed of by this court vide Exts.P2 and P3 dated December 19, 2006 whereby a deduction of `.95,624/- was allowed. This Court also directed that petitioner will get interest at the rate of 10% per annum upto the date of decree and thereafter at the rate of 6% till realisation. 3. Learned Additional District Judge has taken date of decree of the trial court (October 26, 1995) as the date of decree referred to by this Court in Exts.P2 and P3, judgment and decree which obviously cannot be accepted since the trial court decree is no more existed as it merged in the decree of the appellate court. The principle of merger is applied and hence the only O.P(C) No.601 of 2010 -: 3 :- decree in force was that of decree of this Court in A.S. No.375 of 1997 which is dated December 19, 2006. Hence going by the judgment of this Court there could be no doubt that petitioner is entitled to get interest at the rate of 10% per annum till the date of decree, i.e., date of decree of this Court. Finding of learned Additional District Judge to the contra cannot be sustained and is liable to set aside. 4. However, if the whole or any portion of the amount has been deposited by the respondents in the court below during the pendency of the appeal and that amount has been received by petitioner before the decree of this Court, necessarily interest cannot be claimed on the amount received after the date of receipt. Learned counsel for petitioner was not able to confirm whether amount was received by petitioner before date of decree of this Court, while learned Government Pleader asserts so. That is a matter which the court below has to consider. Resultantly, Original Petition is allowed. The order under challenge is set aside and the matter is remitted to the court below for fresh decision as to the amount if any liable to be refunded by petitioner. In considering that, the court below shall take date of decree of this Court in A.S. No.375 of 1997 O.P(C) No.601 of 2010 -: 4 :- (December 19, 2006) as the date of decree referred to in Ext.P3. If the whole or any portion of the amount has been deposited by the respondents in the court below before the decree of this court and the said amount was received by petitioner before the decree of this Court, interest on the amount received shall only upto the date of receipt of the amount. Parties shall appear in the court below on December 10, 2010. THOMAS P. JOSEPH, JUDGE. vsv