IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 CRP.No. 816 of 2007() --------------------- AGAINST THE ORDER DATED 18/09/2006 IN EA.Nos. 251/99,252/99,383/00 in EP.41/91 IN LAR.65/1983 of II ADDL.SUB COURT,TRIVANDRUM .................... REVN. PETITIONER: JUDGMENT DEBTOR --------------------- STATE OF KERALA,REP. BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.R.BINDU. RESPONDENTS: DECREE HOLDER -------------------------- MUHAMMED KANNU MUHAMMED KASSIM, ALBISHARA, KALLATTUMUKKU, MANACAUD, THIRUVANANTHAPURAM. BY ADV. SMT.S.JASMINE FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.2211 OF 2007 IN CRP.NO.816/2007 DISMISSED 27.6.2008 Sd/= (M.SASIDHARAN NAMBIAR,JUDGE.) //TRUE COPY// P.A. To Judge. M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.816 of 2007 ------------------------------- Dated this the 27th June, 2008. J U D G M E N T Enhanced compensation was awarded in L.A.R.No.65 of 1983 by Sub Court, Thiruvananthapuram, in favour of the respondent. It was challenged before this Court in L.A.A.No.292 of 1984. As per judgment dated 25.9.1990, this Court modified the award passed by the Sub court, reducing the land value from Rs.2000/= per Are to Rs.1816/= per Are. The original land value awarded by the Land Acquisition Officer was only Rs.937/= per Are. E.P.No.41 of 1991 was filed for execution of the award, after the disposal of L.A.A.No.292 of 1984. The executing court as per order dated, 28.10.1996, accepted the statement filed by the decree holder as no statement was filed by the judgment debtor, and fixed the balance amount due as on 4.10.1995 at Rs.1,01,335/=. Judgment debtor thereafter filed E.A.Nos.251 of 1999, 252 of 1999, 383 of 2000 claiming that the amount deposited is in excess, and decree holder may be directed to refund the same. The learned Sub Judge thereafter suo motu reviewed the earlier order fixing the amount, CRP.No.816 of 2007 2 which was challenged before this Court in C.R.P.No.915 of 2001. This Court directed the Executing Court to consider the case afresh including the question whether the order dated 28.10.1995 can be reviewed. The learned Sub Judge thereafter as per order dated 18.9.2006 held that the order dated 28.10.1996 has become final and balance due was fixed by the Court as Rs.1,01,335/= and it cannot be reviewed and decree holder was directed to file a fresh statement and to take steps to attach the movables belonging to the State. This revision petition is filed thereafter challenging the said order. 2. The learned Government Pleader appearing for the petitioner and the learned counsel appearing for the respondent were heard. 3. The argument of the learned counsel appearing for the respondent is that as per order dated 28.10.1996, Executing court fixed the amount due as on 4.10.1995, as Rs.1,01,335/= and as that order was not challenged before any forum, it has become final, and, therefore, Executing Court cannot go behind that order, and in such circumstances, petition is only to be dismissed. The further argument of the learned counsel is that as the order operates as res judicata, CRP.No.816 of 2007 3 State is not entitled to challenge the correctness of the order. 4. The order dated 28.10.1996 shows that statement filed by the decree holder as such was accepted for the sole reason that judgment debtor did not file any statement. The order dated 28.10.1996 made available by the learned counsel appearing for the respondent shows that apart from accepting the statement of the decree holder, Executing Court did not find out the actual amount due. Unfortunately, while passing the said order, Executing Court did not consider the amount payable by the State under the award, as well as by the enhancement made by the Sub Court, which was subsequently modified by this Court in L.A.A.No.292 of 1984. The actual amount due to the decree holder can be fixed only with reference to the law as laid down by the Apex Court in Gurpreet Singh v. Union of India (2006 (8) SCC 457). The order dated 28.10.1996, as stated earlier, did not consider the entitlement of the decree holder for interest, for the amount already deposited. Though the decree holder had filed a statement before this Court, that statement shows that interest has been claimed for the entire amount without deducting the amount which was deposited, and that too, in the light of the law as laid down in Gurpreet's case. In such CRP.No.816 of 2007 4 circumstances, for the reason that State did not challenge the order dated 28.10.1996, decree holder is not entitled to get any amount which is not due to him. Therefore, Executing Court is directed to re- fix the amount due to the decree holder, in the light of the Law laid down by the Apex Court in Gurpreet's case. If the decree holder is entitled to any amount, on such calculation, State shall deposit the same within 30 days from the date of the order to be passed by the Executing Court. If the deposit already made is in excess, State is entitled to withdraw the same. Executing Court to pass orders within two months from the date of receipt of a copy of this order. Revision Petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.