Nagayya Alias Ammukutty Nangiar vs State Of Kerala on 3 January, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 1761 of 2003()


1. NAGAYYA ALIAS AMMUKUTTY NANGIAR,
                      ...  Petitioner
2. RUGMINI NANGIAR, POOKKATTIL HOUSE,
3. SUBHADRA MANGIAR,
4. BALAMANI NANGIAR,
5. RAMAN NAMBIAR,
6. SARADA NANGIAR,
7. KAMALAM NANGIAR,

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.N.P.SAMUEL

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :03/01/2008

 O R D E R
                                                     K.T. SANKARAN, J.

                           ...................................................................................

                                               C.R.P. No.  1761  OF  2003

                           ...................................................................................

                                          Dated this the  3rd January, 2008


                                                            O R D E R

The petitioners herein filed E.P.No. 644 of 2001 in L.A.R.No. 56 of 1988 on the

file of the II Addl. Sub Court, Thrissur. The executing court disposed of the Execution

Petition by order dated 31st January, 2003. One of the disputes involved in the

Execution Petition was whether the petitioners are entitled to get interest on solatium.

The petitioners relied on the decision of the Supreme Court in Sunder vs. Union of

India [ 2001 (3) KLT 489 (SC)] . The court below, by the order impugned, rejected

the claim made by the petitioner for interest on solatium on the ground that the decree

does not provide for interest on solatium and execution court cannot go behind the

decree.

2. Learned counsel for the petitioners relies on the judgment of the Supreme

Court in Gurpreet Singh vs. Union of India [ (2006) 8 S.C.C. 457 ]. In paragraph 54

of the judgment , the Supreme Court held as follows:

“One other question also was sought to be raised and answered by

this Bench though not referred to it. Considering that the question

arises in various cases pending in courts all over the country, we

permitted the counsel to address us on that question. That question is

whether in the light of the decision in Sunder, the awardee/decree-

holder would be entitled to claim interest on solatium in execution

though it is not specifically granted by the decree. It is well settled that

an execution court cannot go behind the decree. If, therefore, the

claim for interest on solatium had been made and the same has been

negatived either expressly or by necessary implication by the judgment

or decree of the Reference Court or of the appellate court, the

execution court will have necessarily to reject the claim for interest on

solatium based on Sunder on the ground that the execution court

cannot go behind the decree. But if the award of the Reference Court

C.R.P. No. 1761 OF 2003

2

or that of the appellate court does not specifically refer to the question

of interest on solatium or in cases where claim had not been made

and rejected either expressly or impliedly by the Reference Court or the

appellate court, and merely interest on compensation is awarded, then

it would be open to the execution court to apply the ratio of Sunder and

say that the compensation awarded includes solatium and in such an

event interest on the amount could be directed to be deposited in

execution. Otherwise, not. We also clarify that such interest on

solatium can be claimed only in pending executions and not in closed

executions and the execution court will be entitled to permit its recovery

from the date of the judgment in Sunder (19.09.2001) and not for any

prior period. We also clarify that this will not entail any reappropriation

or fresh appropriation by the decree holder. This we have indicated by

way of clarification also in exercise of our power under Articles 141 and

142 of the Constitution of India with a view to avoid multiplicity of

litigation on this question.”

3. In the present case, the decree does not refer to the question of interest on

solatium . Going by the decision of the Supreme Court in Gurpreet Singh vs. Union of

India [ (2006) 8 S.C.C. 457 ], in such circumstances, the petitioners would be entitled

to claim interest on solatium.

4. The order passed by the executing court in so far as it relates to the claim for

interest on solatium is set aside. The executing court is directed to proceed with the

execution for realisation of the interest on solatium as well.

The Civil Revision Petition is allowed as above.

K.T. SANKARAN,

JUDGE.

lk