IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 26679 of 1999(A)
1. PURUSHOTHAMAN
... Petitioner
Vs
1. DUR,IF CIUR DEVPOT,TVM.
... Respondent
For Petitioner :SRI.V.L.SHENOY
For Respondent :SRI.V.N.SWAMINATHAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :22/10/2007
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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O.P.No.26679 OF 1999
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Dated this the 22nd day of October, 2007
JUDGMENT
The petitioners, a couple, obtained different decrees, by
which, they are entitled to a portion of the properties (66 cents)
which belonged to late Thankappan, the predecessor-in-interest
of respondents 4 to 12. In execution of those proceedings for
specific performance, the petitioners have taken delivery and are
in possession and enjoyment of that parcel. A total amount of
Rs.27,000/- was also deposited by them; i.e., Rs.13,000/- in
O.S.No.34/85 and Rs.14,000/- in O.S.No.4/86 of the Sub Court,
Cherthala.
2. Thereafter, at the instance of the Project Officer (Coir),
Alappuzha, certain actions were taken for recovery of amounts
due from Thankapan. Petitioners, through their learned counsel,
addressed Ext.P2 to the Project Officer (Coir) on 8.2.1990,
intimating that the aforesaid amount of Rs.27,000/- is lying with
the Sub Court, Cherthala to the credit of Thankappan, the debtor
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in the different matters, under which, the Project Officer is
entitled to attach the assets of Thankappan.
3. The petitioners have been driven to file this writ petition in
1999, nine years after Ext.P2, because, revenue recovery
proceedings had reached their doors by action against the
property obtained by delivery through court, consequent on the
decrees for specific performance.
4. The legal niceties of the quality of a decree for specific
performance under the Specific Relief Act qua the entitlement of
the State under revenue recovery laws and any priorities are not
matters required to be gone into to settle this case finally in
accordance with justice.
5. It is admitted that Ext.P2 was received in 1990. The
learned Government Pleader submits today, on latest
instructions, that the present outstandings from Thankapan had
grown to Rs.26,921/- as on 12.9.2007. This means, it is still
below the total principal amount deposited in the C.C.D. a/c with
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the Sub Court, Cherthala in O.S.No.34/85 and O.S.No.4/86,
which deposits are lying there from 26.3.1987 and 17.1.1986
respectively. One does not have to spent much time to note as to
how easily the State could have reached and settled the revenue
recovery demands without much of a burden on the debtor also,
if prompt action had followed Ext.P2.
6. The counter affidavit discloses, among other things, that
the officers of the State were taking different steps to get the
amounts in the C.C.D. deposits attached, which ultimately
become infructuous, the blame being passed on, also to the
Government Pleader at that end. I do not want to say much on
that.
7. As of now, the learned counsel for the petitioners submits
that even today, the aforesaid amounts are lying in the C.C.D.
account because, even Thankappan or his legal representatives
could not withdraw it since their request in that regard had
been refused.
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8. Having regard to the totality of the facts and
circumstances, it requires necessary that the interest of the
State, that of the petitioners and of the legal representatives of
the debtor are concluded in accordance with law and justice.
Hence, this writ petition is disposed of in exercise of authority
under Article 226 and 227 of the Constitution of India, in the
following terms:
(i) All amounts in deposit in O.S.No.34/85 and O.S.No.4/86
of the Sub Court, Cherthala will continue in C.C. deposit as of
now. An appropriate officer on behalf of the State will make a
fresh application claiming such amounts on the strength of the
demands made as evidenced by Ext.P1. The Sub Court,
Cherthala will take up that application and pass appropriate
orders in the light of what is stated above, since, Ext.P1 is
conclusive of the liabilities of the defendant in those cases. As a
consequence, necessary further orders shall be issued for
transferring such amounts, as may be found necessary, to satisfy
the debt in terms of Ext.P1 from the C.C.D. account to such
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account of the Revenue, as may be sought for on behalf of the
State.
(ii) If any amount is left after being dealt with in accordance
with what is stated above, the same may be disbursed to the
appropriate applicant, if any, in accordance with law.
(iii) There shall be no revenue recovery action against the writ
petitioners or against the property they have obtained by
delivery following decrees in O.S.No.34/85 and O.S.No.4/86 of
the Sub Court, Cherthala. If the outstandings due from the
debtor under Ext.P1 is not satisfied by the above process, any
further assets referable to him could be proceeded with in
accordance with law. It is clarified that this judgment would not
stand in the way of any such action. However, it shall be
ensured that no property, as obtained by the petitioners in terms
of the decrees in O.S.No.34/85 and O.S.No.4/86 of the Sub
Court, Cherthala, is disturbed in any manner.
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The petitioners are directed to produce a copy of this
judgment before the Sub Court, Cherthala. The Office will also
communicate a copy of this judgment to that court.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.
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THOTTATHIL B. RADHAKRISHNAN, J
O.P.NO.26679 OF 1999
JUDGMENT
22nd OCTOBER, 2007.
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