IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 CRP.No. 68 of 2006() ----------------------------- EA. 723/2004 IN EP. 570/2003 IN LAR. 9/01 OF THE IST ADDL. SUB COURT, ERNAKULAM. ................. REVN. PETITIONER(S): JUDGMENT DEBTOR ---------------------------------------------------------------- STATE OF KERALA. BY GOVERNMENT PLEADER RESPONDENT(S): DECREE HOLDER ---------------------------------------------------- 1. ABRAHAM JACOB, S/O.JACOB, KUNNETH VEEDU, CHITTATHUKARA, KAKKANAD. 2. ASHA DAVID, S/O.JACOB, KUNNETH VEEDU, CHITTATTUKARA, KAKKANAD. 3. ANN MARIYAM ABRAHAM, S/O.ABRAHAM JACOB, AGED 13, KUNNATHU VEEDU, CHITTETHUKARA, KAKKANAD. 4. ARUN JACOB ABRAHAM, S/O.ABRAHAM JACOB, AGED 12, KUNNATHU VEEDU, CHITTETHUKARA, KAKKANAD. R2 TO R4 BY ADV. SRI.MATHEW K.VARGHESE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.68 of 2006 -------------------------------------- Dated this the 19th day of November, 2011. ORDER Order dated 01.11.2004 on E.A.No.723 of 2004 in E.P.No.570 of 2003 in L.A.R.No.9 of 2001 of the court of learned Additional Sub Judge-I, Ernakulam is under challenge at the instance of the State. 2. By the impugned order learned Sub Judge fixed liability of petitioner as on 31.10.2004 at `15,08,977/- and ordered attachment of property. 3. It is contended by the learned Government Pleader appearing for petitioner that there is no basis for fixing the liability as above mentioned. According to the learned Government Pleader, liability as above fixed is based on interest on solatium allowed in the execution proceeding which ought not have been, in view of the decision in Gurpreet Singh v. Union of India ((2006) 8 SCC 457). 4. Since the order does not say in what way liability was fixed, this Court called for a report from the learned Sub Judge. Learned Sub Judge in the report dated 10.03.2006 states that the impugned order was passed by her predecessor-in-office and hence she is not able to give exact information on CRP No.68/2006 2 which the officer who passed the order arrived at the conclusion but on a perusal of the records it is revealed that respondents/decree holders had filed statement of account showing actual liability as on 31.10.2004 and that liability might have been fixed taking into account the amount of compensation awarded under Sections 23 and 23(1A) of the Land Acquisition Act with interest from 05.03.1998 to 10.03.2000 computing interest for 735 days instead of 736 days claimed. Respondents were found entitled to get `15,09,298.17 deducting compensation payable for a day. Learned Sub Judge has also appended to the report a copy of statement filed by the respondents/decree holders. 5. Learned Government Pleader points out that respondents have claimed and computed interest on solatium which by implication was disallowed by the judgment in L.A.R.No.9 of 2001. According to the learned Government Pleader in view of the decision in Gurpreet Singh v. Union of India, when interest on solatium is disallowed by implication, the same ought not to be allowed in execution. 6. So far as the said contention is concerned, in the decision referred supra, it is held that interest on solatium can be awarded in execution only if the reference or appellate court has not negatived the same expressly or by implication. In the operative portion of the judgment in L.A.R.No.9 of 2001 (a copy of which is made available by the learned Government Pleader for perusal) learned Sub Judge has stated on what all heads respondents (claimants in CRP No.68/2006 3 L.A.R.No.9 of 2001) are entitled to get compensation and the rate of solatium and interest payable with the relevant dates. But that alone does not show that by implication learned Sub Judge has negatived the claim for interest on solatium. The judgment nowhere states that claim for interest on solatium was raised by the respondents and was considered by the learned Sub Judge so that one could attempt at an inference from the operative portion of the judgment that claim for interest on solatium was impliedly negatived. Learned Government Pleader states that Clause (d) in the operative portion of the judgment in L.A.R.No.9 of 2001 it is stated that respondents (claimants) are entitled to get interest calculated at 9% per annum on `5,98,892/- for a period of one year from 11.03.2000 and thereafter at 15% per annum till the amount of `5,98,892/- is paid into court. According to the learned Government Pleader, the said `5,98,892/- is the enhanced compensation awarded by way of land value. From Clause (d) of the operative portion of the judgment in L.A.R.No.9 of 2001, I am not inclined to draw any inference that the claim for interest on solatium was impliedly negatived by the learned Sub Judge. In that view of the matter, respondents are entitled to claim interest on solatium but it can be claimed only from 10.09.2001 onwards. 7. Yet another contention which learned Government Pleader has raised is that from the further amount fixed by the learned Sub Judge, tax payable at source is to be deducted but, that is not seen done. That could be CRP No.68/2006 4 made clear by stating that it is open to the learned Sub Judge to consider whether on the additional amount payable tax is payable at source and if so, the said amount is to be deducted. Resultantly this civil revision is disposed of directing the executing court to re-fix liability of petitioner in the light of the observations made above. Learned Sub Judge shall fix the liability if any of petitioner and if tax on any amount found payable is liable to be deducted at source, fix the amount thus payable and the same shall also be deducted from the amount payable by petitioner. I.A.No.309 of 2006 will stand dismissed. THOMAS P.JOSEPH, Judge. cks