IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34835 of 2009(O)
1. OMANA, D/O.PONNAMMA, AGED 50,
... Petitioner
Vs
1. CHACKO JOSEPH, S/O.CHACKO, AGED 58,
... Respondent
For Petitioner :SRI.K.S.HARIHARAPUTHRAN
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :02/11/2010
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C).NO.34835 OF 2009
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DATED THIS THE 2ND DAY OF NOVEMBER, 2010
JUDGMENT
Petitioner is the plaintiff in O.S.No.965/01 on the file
of the Pricipal Munsiff’s Court, Alappuzha. Respondent herein is
the defendant in the suit. The suit was filed against the respondent
for realisation of money. The trial court decreed the suit as prayed
for and allowed the plaintiff to realise an amount of Rs.80,750/-
with 12% interest on the principal amount of Rs.50,000/- from the
date of suit till the date of decree and 6% interest from the date of
decree debt till realisation with costs. In the appeal preferred by
the defendant the Appellate Court modified the decree. The
Appellate Court directed the defendant to pay a lump sum amount
of Rs.25,000/- to the plaintiff within three months from today,
failing which the plaintiff will have every right to realise the total
sum of Rs.92,238/- together with interest at the rate of 12% per
annum on the principal amount of Rs.50,000/- from the date of suit
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with costs from the defendant and his assets. That seems to be very
strange. At the same time, the decree passed by the Appellate Court
has become final, since the plaintiff did not care to prefer any
further appeal. Ext.P1 judgment would show that the defendant is
permitted to pay Rs.25,000/- within three months. Instead of paying
the entire decree amount, only if Rs.25,000/- is not paid within
three months, the plaintiff was allowed to realise the entire amount.
The defendant did not pay the amount within three months as
directed in Ext.P1. The plaintiff filed E.P.No.264/07 for realising
the amount as per Ext.P1. Ext.P2 is the copy of the execution
petition. While the E.P. was pending, the defendant filed
E.A.No.353/09 seeking to allow him to pay Rs.25,000/- towards the
the satisfaction of the decree. His explanation for not paying the
amount of Rs.25,000/- within three months was accepted by the
execution court. The execution court passed an order in the E.A.
directing the judgment debtor to pay or deposit an amount of
Rs.25,000/- with interest at the rate of 12% per annum on the
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principal amount of Rs.50,000/- from 13/2/2007 till the date of
deposit or payment on or before the next posting date for payment
to 5/10/09. Ext.P5 is the order passed by the execution court which
is under challenge. The execution court in Ext.P5 found that there
is no compliance of the deposit as directed in Ext.P1 decree and
hence there is non-compliance of Order XXI Rule I of the C.P.C.
The execution court has got the authority to give life and
enforceability to the spirit of the decree and not defeat it on
technical grounds. The decree passed by the Lower Appellate
Court is very clear. The decree gave concession to the defendant to
pay Rs.25,000/- within three months, if not paid, to pay the entire
decree amount as per the decree. For whatever reasons best known
to the defendant, he did not deposit or pay the amount to the decree
holder within three months. Since the amount was not paid within
three months, the latter part of the decree is to be followed and
enforced by the execution court. In such circumstances, the
execution court has no authority to permit the judgment debtor to
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pay Rs.25,000/- and interest towards the satisfaction of the decree.
The decree holder is entitled to realise the entire amount as per
Ext.P1 decree.
The learned counsel for the decree holder submitted that
the defendant/judgment debtor did not even care to comply with the
direction contained in Ext.P1 decree. It is submitted that even now
the amount ordered by the court in lieu of the decree amount was
not paid till date. Ext.P5 order was passed against the letter and
spirit of the decree. Therefore, Ext.P5 order is set aside. The
execution court shall proceed with the E.P. to realise the amount as
per Ext.P1 decree.
Writ Petition is allowed.
HARUN-UL-RASHID,
Judge.
kcv.