IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 33148 of 2003(U) -------------------------- PETITIONER(S): --------------- M.HASSANKOYA, S/O. MOHAMMED KUNHU, VELIMPARAMBIL HOUSE, SANADANAM WARD, ALAPPUZHA. BY ADV. SRI.P.R.VENKETESH SRI.R.AZAD BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO THE GOVT., SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. 3. THE DEPUTY TAHSILDAR (R.R), AMBALAPUZHA TALUK. 4. KOSHY VARGHESE, S/O. VARGHESE, THAVALATHIL, PATHANAMTHITTA VILLAGE. R4 BY ADV. SRI.ANIL THOMAS (MELEMALAYIL) SRI.JOSE ABRAHAM SRI.SIJU P.KURIAKOSE R1 TO R3 BY G.P. SRI.MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON 14/07/2009 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF JUDGMENT DT.15.12.1989 IN O.S. 129/88 ON THE FILES OF THE ADDL. SUB COURT, ALAPPUZHA. P2: TRUE COPY OF JUDGMENT DT.28.3.2001 IN A.S. NO.401.92 OF THIS HON'BLE COURT. P3: TRUE COPY OF EXECUTION PETITION DT.2.9.2002 BEFORE THE COURT BY R4. P4: TRUE COPY OF REPLY SENT ON 12.5.2003 BY PETITIONER TO THE DISTRICT COLLECTOR. P5: TRUE COPY OF NOTICE DT.6.6.2003 OF R2 TO THE PETITIONER. P6: TRUE COPY OF REPLY DT.16.7.2003 SENT BY PETITIONER TO R2. P7: R.R. NOTICE DT.6.9.2003 ISSUED BY R3 TO THE PETITIONER. RESPONDENT'S EXHIBITS: R2(a): PROCEEDINGS DT.3.3.86. R2(b): SALE NOTICE DT.21.1.1977. R2(c): INVENTORY DT.28.4.1989 SUBMITTED BY SRI.T.K.CHINNAN THE ADVOCATE COMMISSIONER. R2(d): NOTICE DT.6.6.2003. R2(e): REPLY DT.16.7.2003 SUBMITTED BY PETITIONER. R2(f): OBJECTION PETITION AND AFFIDAVIT DT.3.2.2003 FILED BY THE DISTRICT GOVT. PLEADER AGIANST E.P. NO.115/2002 IN O.A.128/88 OF SUB COURT, ALAPPUZHA. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.33148 of 2003 .................................................................... Dated this the 14th day of July, 2009. JUDGMENT The petitioner is challenging Ext.P5 whereunder the District Collector, Alleppey has ordered recovery of Rs.13,87,731/- from the petitioner towards the decree debt paid by the loanee under Ext.P1 judgment of the Additional Sub Court, Alleppey which got confirmed in appeal filed by both the State as well as the petitioner. On going through Ext.P1 confirmed in appeal, I find that the Civil Court has passed a decree making the Government and the petitioner jointly liable for the decree amount with interest thereon. The facts found by the civil court clearly show that machinery originally sold to the plaintiff could not be taken at all by him as part of which were pilfered by the petitioner. Under the judgment and decree of the civil court, petitioner and Government are jointly and severally liable for the decree amount. However, in execution proceedings, under compulsion Government deposited the entire amount and civil court closed the decree. Thereafter on legal advice from the Government Pleader, the District Collector has initiated recovery proceedings for recovery of entire decree debt paid by the Government, against which this W.P. is filed raising 2 various contentions. I heard counsel for the petitioner and Government Pleader for respondents. 2. Even though counsel for the petitioner contended that Government has to file another suit against petitioner to obtain the decree debt, I am of the view that the contention is thoroughly absurd because petitioner is a judgment debtor for the full amount paid by the Government, even though Government is also a judgment debtor along with the petitioner. In fact, the civil court has not bifurcated the liability between co-defendants and therefore, it could be recovered in full from the Government or from the petitioner or from both the parties together. The Government probably would have deposited the amount to avoid compelling measures from court like attachment of Government property etc. This does not entitle petitioner to take advantage of the predicament of the Government and the circumstances under which decree amount is deposited before the Sub Court. However, since the civil court has not fixed liability exclusively on the petitioner, I am of the view that the District Collector was not justified in demanding full amount from the petitioner. On equitable considerations, I feel petitioner should be made to pay only 50% of the amount deposited by the Government together with future interest thereon at the rate provided in the Revenue Recovery Act. Petitioner's contention that revenue recovery 3 proceedings is not maintainable for recovery of the decree amount deposited by the Government is not tenable because Section 68 of the Revenue Recovery Act provides for recovery of all dues payable by any person to the Government. Since the Government has satisfied the decree and this court has limited petitioner's liability to 50% on equitable considerations, Government is entitled to recover the balance 50%. Even though counsel for the petitioner submitted that in second auction petitioner purchased the machinery for Rs.2 lakhs and the same was deposited, I do not think this court can go behind the judgment and decree of the civil court confirmed in appeal. In the circumstances, W.P. is is allowed in part by directing the respondents to recover 50% of the amount deposited by the Government i.e. Rs.13,87,731/- with interest at the rate applicable under the R.R. Act. C.N.RAMACHANDRAN NAIR Judge pms