IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25926 of 2009(O)
1. JOSEPH.K.A., S/O.ANTONY,
... Petitioner
2. DAVIES E.F., S/O.FRANCIS,
3. ANTO P.THOMAS, S/O.THOMAS,
Vs
1. THE BRANCH MANAGER,
... Respondent
For Petitioner :SRI.M.K.DILEEP KUMAR
For Respondent :SRI.N.D.PREMACHANDRAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :17/09/2010
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.25926 Of 2009
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Dated this the 17th day of September, 2010.
J U D G M E N T
The judgment debtors 1, 2 & 4 in E.P.No.339 of 2000 in
O.S.No.607 of 1989 on the file of the Additional Sub Court,
Thrissur are the petitioners in this writ petition filed under Article
227 of the Constitution of India. The first respondent bank filed
the suit for realisation of money. Suit was decreed. The above
said E.P. was filed for realisation of Rs.1,91,681/-. The
petitioners filed a statement contending that they have paid
major portion of the decree debt and only Rs.9,848/- was due to
the decree holder. The execution court considered the
statements filed by the bank as well as the judgment debtors and
concluded that the statement filed by the decree holder is correct
and acceptable. Execution court directed the judgment debtors
to pay an amount of Rs.1,57,122/- to the decree holder. The
petitioners did not pay the amount as ordered. The execution
court found that petitioners have means to pay the debt and
ordered arrest and detention in civil prison.
2. The petitioners challenged the order passed by the
executing court by filing O.P.No.36486 of 2001 before this Court.
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This Court set aside the order passed by the executing court
dated 13.11.2001 quantifying the amount payable at
Rs.1,57,122/- and set aside the order of arrest and detention of
the petitioners in civil prison on condition that petitioners deposit
in the bank an amount of Rs.75,000/- within one month from the
date of receipt of a copy of the judgment in the court below. This
Court also directed the learned Sub Judge to given reasonable
opportunity to the petitioners to prove that the amount claimed
in the statement filed by the decree holder is not correct. Taking
into account the grievance of the petitioners this Court directed
the learned Sub Judge to consider as to whether the amount paid
by the petitioners were included in the statement filed by the
decree holder or not. Ext.P2 is the judgment passed by this
Court in the earlier O.P. dated 5.6.2006. After Ext.P2 judgment,
the second judgment debtor filed a petition before the execution
court praying to appoint an expert in accountancy to report about
the correctness of the statement filed by the parties showing the
payments made by the judgment debtors. Ext.P3 is the affidavit
and the petition filed for appointment of the commissioner.
Ext.P4 is the report of the commissioner. In Ext.P4 report the
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commissioner reported the liability of the judgment debtors from
the date of decree till the date of filing of the report.
Commissioner reported that the total amount due to the decree
holder as per the decree as on the date of filing of the report is
Rs.86,777.73/-. Judgment debtors did not file any objection to
the commissioner’s report. The second petitioner herein filed
E.A.No.541 of 2008 praying to give a further direction to the
commissioner to file another statement. By order dated
17.8.2009, produced as Ext.R1(c) the execution court held that
the prayer in the I.A. to give further direction to the
commissioner to file another statement cannot be allowed.
Therefore the court dismissed the said E.A.
3. The decree holder filed E.A.No.754 of 2008 stating
that there occurred a mistake while calculating the interest. It is
stated that 12% interest for the principal amount from 1.8.1999
is Rs.1,42,151/- whereas it has been recorded as 1,14,331/-.
The prayer in the petition is for allowing the decree holder to
amend the execution petition. The execution court by order
dated 11.8.2009 disallowed the prayer. Ext.R1(c) is the order
passed by the court. The court observed that since the
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calculation of the statement ordered by the commissioner is not
opposed by the parties, that the decree holder does not take a
stand against what has been reported by the commissioner, the
prayer of the decree holder was disallowed.
4. As I said earlier, the commissioner reported that the
amount payable by the judgment debtors as on the date of filing
of the report is Rs.86,777.73/-. The court, finding that both
sides did not file any objection to the calculation done by the
commissioner, accepted the amount as due to the decree holder
as on the date of filing of the report. In the said circumstances,
the court by order dated 27.8.2009 accepted the amount
quantified by the commissioner finding that the said amount was
not paid by the judgment debtors. The court on 17.9.2009
issued arrest warrant against the judgment debtors. I have
stated in brief, the proceedings passed by the execution court in
the E.P. This Court passed Ext.P2 judgment in a petition filed by
the judgment debtors. As requested by the judgment debtors
this Court granted opportunity to the judgment debtors to adduce
evidence so as to show the correct amount due as per the
decree. On that basis of the judgment debtors applied to the
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execution court to appoint an expert on accountancy for the
verification of the correctness of the statements filed by the
parties showing the payment made by the judgment debtors.
Commissioner filed Ext.P4 report. In the report the
commissioner reported the correct liability from the date of
decree till the filing of the report. The amount actually due as
per the commissioner’s report is Rs.86,777.73/-. The parties
have not filed any objection to the commissioner’s report. In the
circumstances, subsequent orders were passed on 27.8.2009 and
7.9.2009 quantifying the amount due and ordering arrest warrant
against the judgment debtors on their failure to pay the decree
amount. In the facts and circumstances of the case, I find that
no valid grounds are made by the judgment debtors in effectively
challenging the orders passed by the execution court. I do not
find any reason to interfere with the orders passed by the
execution court in exercise of the supervisory jurisdiction vested
with this Court under Article 227 of the Constitution of India.
5. Learned counsel for the petitioners submitted that
during the pendency of the writ petition they have deposited
Rs.26,501/- as directed by this Court. Learned counsel for the
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bank on the other hand submitted that the petitioners did not
comply with the interim order passed by this Court and did not
deposit the amount. Whether the amount was deposited or not is
a matter to be verified by the execution court. The learned
counsel for the petitioners requested this Court to permit the
petitioners to pay the balance amount in easy instalments.
6. This Court order that the order of the execution court
ordering arrest and detention of the judgment debtors in civil
prison shall be kept in abeyance if the petitioners deposit
Rs.30,000/- within a period of one month from today and the
balance amount in 5 equal monthly instalments. Rs.30,000/-
shall be deposited on or before 20.10.2010 and the balance
amount on or before 10th of every succeeding months. If the
petitioners failed to deposit the amount as directed above, the
order dated 27.8.2009 and 7.9.2009 of the execution court shall
stand confirmed and the execution court can proceed with the
execution of the decree. This judgment passed will not prevent
the bank from entertaining any application from the judgment
debtors under the One Time Settlement Scheme. If the
judgment debtors submit any application seeking OTS benefits
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within a period of two weeks from today, orders shall be passed
on such application within a period of two weeks thereafter.
Writ petition is disposed of as above.
HARUN-UL-RASHID,
Judge.
bkn/-