Kerala High Court
Sheik Musthafa vs Sheik Musthafa on 11 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942
OP(C).No.1740 OF 2017
AGAINST THE ORDER IN E.A.NO.45/2017 IN E.P.NO.67/2009 IN
OS 2/2004 OF MUNSIFF COURT, CHITTUR
PETITIONER/RESPONDENT/JUDGMENT DEBTOR:
SHEIK MUSTHAFA
S/O SHAHUL HAMEED,AGED 57 YEARS, RESIDING AT
ATTAYAMPATHY,MUTHALAMADA VILLAGE, PALAKKAD
TALUK, PALAKKAD DISTRICT.
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT/PETITIONER/DECREE HOLDER:
NJANAVEL
S/O NATARAJA CHETTIYAR,AGED 45 YEARS, RESIDING
AT ATTAYAMPATHY,MUTHALAMADA VILLAGE, PALAKKAD
TALUK,PALAKKAD DISTRICT.
BY ADV. SRI.ABE RAJAN
BY ADV. SRI.LIJU. M.P
BY ADV. SRI.SAJAN VARGHEESE K.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.1740/2017
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Dated this the 11th day of February, 2021
J U D G M E N T
The sole judgment debtor in E.P.No.67/2009 in
O.S.No.2/2004 has come up before this Court
challenging Ext.P6 impugned order dated 04.04.2017
passed by the Munsiff's Court, Chittur.
2. Pursuant to a decree for money obtained by
the respondent/decree holder, execution petition
was filed for recovery of a decree amount and cost
of litigation. It is seen that the petitioner
approached this Court and obtained an order in O.P.
(C)No.1218/2015 permitting him to discharge the
decree debt in instalments. Learned counsel for the
respondent/decree holder submits that when the last
installment was paid and the correctness of amount
was being verified in the light of the statements
made by the parties, it was ascertained that the
amount of litigation cost mentioned in Column No.10
O.P.(C)No.1740/2017
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of execution petition was incorrect and mistakenly
written. It is stated that instead of actual cost
of Rs.14,020/- it was wrongly mentioned as
Rs.5,556/- by arithmetical error. The mistaken
amount was therefore sought to be corrected by way
of amendment to execution petition. E.A.No.45/2017
filed for amendment was allowed by the court below
after hearing both sides. The judgment debtor being
aggrieved by the order allowing amendment, has
filed this original petition.
3. I heard the learned counsel appearing on
both sides.
4. Column No.10 of the execution petition
gives a detailed description of heads of expenses
recoverable from the judgment debtor. It is
manifest from Column No.10 itself that the amount
shown in Column No.10 on arithmetical calculation
would represent a gross amount of Rs.14,020/-. But,
O.P.(C)No.1740/2017
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however it came to be wrongly mentioned as
Rs.5,556/-. The argument advanced by the learned
counsel for the petitioner is that in as much as he
has already obtained an order in O.P.
(C)No.1218/2015 permitting payment of decree amount
in instalments, the decree holder is estopped from
claiming any amount different from what was already
mentioned in the execution petition.
5. I find my way difficult to accept this
argument because there is nothing to indicate that
this Court while granting an instalment facility,
had quantified the decree amount also. As I stated
earlier, by virtue of a clerical mistake, the
actual cost of litigation amount happened to be
wrongly mentioned in Column No.10. If that be the
position, there is no reason why the plea for
amendment sought by the decree holder ought to be
refused. In my view, the court below after
O.P.(C)No.1740/2017
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appreciating relevant materials before it, came to
a rightful conclusion that respondent/decree holder
is entitled to an order correcting the amount
wrongly mentioned in Column No.10 of the execution
petition. I do not find any reason to interfere
with the impugned order.
In the result, the original petition fails and
the same is dismissed. However, the petitioner will
get one month's time from today to remit the amount
outstanding in favour of the decree holder.
All pending interlocutory applications are
closed.
Sd/-
T.V.ANILKUMAR
JUDGE
ami/
O.P.(C)No.1740/2017
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION
NO.67/2009 IN O.S NO.2/2004 ON THE FILE
OF MUNSIFF COURT, CHITTUR.
EXHIBIT P2 TRUE COPY OF THE STATEMENT OF ACCOUNT
SUBMITTED BY COUNSEL FOR DECREE HOLDER
ON 11.2.2015.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN O.P.
(C)NO.1218/2015 DATED 15.7.2016 PASSED
BY THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE PETITION AND AFFIDAVIT
NUMBERED AS E.A. NO.45/2017 IN
E.P.NO.67/2009 IN O.S.NO.2/2004 ON THE
FILE OF THE MUNSIFF COURT, CHITTUR.
EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY
PETITIONER TO EXHIBIT P4.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 4.4.2017 IN
E.A.NO.45/2017 IN E.P.NO.67/2009 IN
O.S.NO.2/2004 PASSED BY THE MUNSIFF
COURT, CHITTUR.
