IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 CRP.No. 1170 of 2004 AGAINST THE ORDER DATED 09/06/2004 IN EP.NO.328/2002 IN OS.NO.42/1990 OF PRINCIPAL SUB COURT, ERNAKULAM REVN. PETITIONER: JUDGMENT DEBTOR/DEFENDANT ------------------------------------------- P.I.DAVID, S/O. PADIPURAKKAL ITTIRAH, PROP.M/S. P.T.ITTIRA & SONS, MULANTHURUTHY. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.R.MURALIDHARAN (AROOR) RESPONDENTS: DECREE HOLDER/PLAINTIFF ------------------------------------ M/S. SOUTH INDIAN BANK LTD., MULANTHURUTHY. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1170 OF 2004 C -------------------------------------------- Dated this the 10th January, 2008 O R D E R The judgment debtor challenges in this Revision the order dated 9.6.2004 in E.P.No.328 of 2002 in O.S.No.42 of 1990, on the file of the Court of the Principal Sub Judge, Ernakulam. The Execution Petition was filed for realisation of the amount allegedly due to the decree holder after adjusting the amount already paid. The petitioner herein raised objections and contended that he had made the following payments, namely, Rs.20,000/- on 1.8.1996, Rs.10,000/- on 1.4.1998, Rs.20,000/- on 6.7.1998 and Rs.1,000/- on 8.10.1999. It was also contended by the judgment debtor that if the amounts paid by him are taken into account, there will be no balance to be paid to the decree holder, but amounts will be due to him from the decree holder. 2. The court below directed the Junior Superintendent to look into the papers and file a report as to whether amounts are due from the petitioner to the decree holder. In the report filed by the Junior Superintendent, he stated that an amount of Rs.51,678.14 is due to the decree holder. The judgment debtor contended that the report submitted by the Junior Superintendent is incorrect. The court below rejected that C.R.P. NO.1170 OF 2004 :: 2 :: contention and passed the order impugned holding that the contention of the judgment debtor was only to avoid payment. Notice under Order XXI Rule 66 of the Code of Civil Procedure was directed to be issued by the order impugned. 3. When the Civil Revision Petition came up on 4.10.2004, this Court passed the following order: “Urgent Notice. According to the petitioner, an amount of Rs.20,000/- was paid on 1.8.96, Rs.10,000/- on 1.4.98, Rs.20,000/- on 6.7.1998 and Rs.1,000/- on 8.10.99 through Court which is omitted to be taken into account. This amounts are said to have been paid through Court. The Court below may verify through office and report. Along with the report, records may also be forwarded to this Court.” In compliance with the direction issued by this Court, the Principal Sub Judge, Ernakulam has submitted a report dated 5.1.2008, which reads as follows: “With reference to the above, I may report that on perusal of the records, it is seen recorded in the E.P that on 1.8.96 Rs.20,000/-, on 1.4.98 Rs.10,000/-, on 6.7.98 Rs.20,000/- and on 8.10.99 Rs.5,000/- (Not Rs.1,000/-) were paid by the Judgment Debtor to the Decree Holder directly. Besides these payments, a sum of Rs.2,65,500/- was also seen paid on various dates. All payments were direct payments by the parties, as recorded in the proceeding of the E.P. The records in E.P.328/02 in O.S.42/90 is submitted herewith.” C.R.P. NO.1170 OF 2004 :: 3 :: 4. In view of the report submitted by the Principal Sub Judge, it is clear that the audit report submitted by the Junior Superintendent is incorrect. Necessarily, the order passed by the court below is liable to be set aside. Accordingly, the Civil Revision Petition is allowed and the order impugned in this Revision is set aside. The court below shall consider the matter afresh, treating the report dated 5.1.2008, submitted by the Principal Sub Judge, Ernakulam to this Court as reflecting the correct state of affairs. Further orders shall be passed by the executing court in accordance with law and in the light of the observations made above. (K.T.SANKARAN) Judge ahz/