IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 293 of 2004()
1. HINDUSTAN ORGANIC CHEMICALS LTD.
... Petitioner
Vs
1. BABY JOSEPH, PUNNASSERY HOUSE,
... Respondent
For Petitioner :SRI.U.K.RAMAKRISHNAN (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :30/05/2008
O R D E R
HARUN-UL-RASHID, J.
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C.R.P No. 293 of 2004
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Dated this the 30th day of May 2008
ORDER
The revision petitioner is the requisitioning authority in the Land
Acquisition Reference case No.117/1982. on the file of the First additional
sub court, Ernakulam. The revision petitioner is the second judgment
debtor in E.P No. 355/1998 in L.A.R. 117/1998 This revision petition is
filed challenging the order dated 14.10.2003 in E.A 658/2002 ordering
attachment, in E.P. No.355/1988.
2. According to the revision petitioner, the respondent had filed
an execution petition earlier as E.P No. 150 of 1988 for execution of decree
The said petition was dismissed on 16.7.1988 on depositing of Rs.
1,22,291/- by the revision petitioner. The respondent subsequently filed
another petition as E.P. No. 515 of 1991 claiming an amount of Rs.
1,87,439.17 The petitioner filed an objection and deposited an amount of
Rs.1,14,515/- on 7.11.1991 The respondent though was entitled to get
only an amount of Rs. 77,161.13, withdrew the full deposited amount The
respondent had thus withdrawn an excess amount of Rs. 37,353.87 The
E.P No.515 of 1991 was dismissed on 20.3.1993. The respondent on
25.7.1998 filed yet another petition as E.P No. 355 of 1998 claiming an
amount of Rs. 49,804.81. The revision petitioner herein filed an objection
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and calculation statement stating that no amount is due to the
respondent/decree holder, on the other hand the respondent/decree holder
is liable to return to the revision petitioner the excess amount of Rs.
37,353.87 withdrawn by him. The respondent on 21.8.2001 filed a balance
statement showing that the balance amount due to him was Rs. 60,770/-
The execution court without considering the objection of the petitioner and
without determining the amount if any, due to the respondent has ordered
for taking further steps in the execution petition and on 24.1.2002 the court
has ordered attachment. The petitioner therefore filed a review petition as
E.A. 658 of 2002 praying for an order to review the attachment order dated
24.1.2002 passed by the execution Court. Respondent filed an objection
The execution court without considering the settled legal principles, by
order dated 14.10.2003 held that the respondent has filed statement
squarely in accordance with decree and the balance amount due to
respondent as on13.11.1991 isRs. 24,678.45 and dismissed E.A. No. 658
of 2002.
3. The revision petitioner submitted that the calculation made by
the decree holder is wrong and it is wrongly accepted by the execution
Court. The principles regarding the rule of appropriation and adjustment
of amount in Land acquisition cases are well settled by the recent
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decisions of this Court in State of Kerala Vs. Mariamma 2005 (2) KLT
587 and Supreme court in Gurpreet Singh Vs. Union of India 2008(1)
KLJ 463 and therefore the correct calculation is necessitated. In case
the revision petitioner file the correct calculation statement in accordance
with the principles laid down in the aforesaid decisions and if it shows the
excess amount has been deposited by him mistakenly, the respondent is
bound to return the said excess amount.
4. After considering the facts and circumstances of this case I
am of the view that the matter requires reconsideration. Before
considering the said questions the execution court shall call for
calculation statements from both sides. It must be prepared in
accordance with the principles laid down as stated above. The execution
court shall consider this matter afresh after giving opportunity to both
sides to substantiate their contentions. E.A. 658/2002 filed for reviewing
the order of attachment is set aside The counsel for the revision
petitioner drew my attention to a decision of a Division Bench of this Court
dated 29.5.2001 in C.R.P 784/1998 wherein it is held that the closing of
earlier execution petition on the basis that the amount claimed by the
decree holders and if the amount is deposited that amounts to recording
satisfaction of the decree The said principle laid down by this Court shall
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be considered before passing orders. The learned counsel for the revision
petitioner submitted that even if any balance amount is due to the decree
holder/respondent he is not entitled to claim the said amount . Whatever
is asked is deposited which amounts to recording satisfaction of the
decree The execution court is directed to consider this contention of the
revision petitioner as well. The order shall be passed within a period of 4
months from the date of receipt of a copy of this order.
The impugned order is set aside.The Civil Revision petition is
disposed of, as stated above.
HARUN-UL-RASHID, JUDGE
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