Kerala High Court
C.K.C.B. Agencies vs Kerala State Electronics ... on 5 November, 2021
OP(C).128 & 718/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
OP(C) NO. 128 OF 2021
AGAINST THE ORDER/JUDGMENT IN OS 306/1994 OF PRINCIPAL SUB
COURT / COMMERCIAL COURT, ERNAKULAM, ERNAKULAM
EP 238/2011 OF PRINCIPAL SUB COURT / COMMERCIAL COURT,
PALAKKAD, PALAKKAD
PETITIONER/S:
M/S.C.K.C.B. AGENCIES
REPRESENTED BY C.K.CHAMUNNI, S/O.N.KANDAN, AGED 68
YEARS, RESIDING AT HOUSE NO.590 (OLD NO.548), WARD
NO. II VILLAGE, VADAKKENCHERY, PANCHAYAT PALAKKAD
DISTRICT.
BY ADVS.
P.R.VENKATESH
SRI.G.KEERTHIVAS
RESPONDENT/S:
KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION
LTD.(KELTRON)
VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033.
BY ADV SMT.M.A.ZOHRA
THIS OP (CIVIL) HAVING COME UP HEAVING ON 27.8.2021,
ALONG WITH OP(C).718/2021, THE COURT ON 05.11.2021 DELIVERED
THE FOLLOWING:
OP(C).128 & 718/2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
OP(C) NO. 718 OF 2021
AGAINST THE ORDER/JUDGMENT IN OS 306/1994 OF PRINCIPAL SUB
COURT / COMMERCIAL COURT, PALAKKAD, PALAKKAD
LAR 1/2015 OF II ADDITIONAL DISTRICT COURT & SESSIONS
COURT,PALAKKAD, PALAKKAD
PETITIONER/S:
1 C.K.CHAMUNNI
AGED 68 YEARS
S/O. N. KANDAN, RESIDING AT KARUVAPPADAM, MANGLAM,
DESOM, ANCHUMOORTHY P. O., VADAKKENCHERY, ALATHUR,
NOW RESIDING AT MELACHOORKUNNU, KANNAMBRA AMSOM,
PALAKKAD DISTRICT.
2 RENJUSHA C.
D/O. LATE RAMANI, MAMPARAMBIL HOUSE, TACHANADI,
PUTHUCODE, PALAKKAD DISTRICT - 678687.
3 RASMIJA S. E.
D/O. LATE RAMANI, 47/1, PADMASALI SOCIETY, NEAR
VIRAT NAGAR CROSS ROAD, BAPURAGAR, AHMEDABAD,
GUJARAT - 680 024.
BY ADVS.
P.R.VENKATESH
SRI.G.KEERTHIVAS
RESPONDENT/S:
1 DIVAKARAN
S/O. KARTHIYANI AMMA, THONURE THONURE HOUSE,
PARUVASSERY POST, AYAKKAD AMSOM, ALATHUR TALUK,
PALAKKAD DISTRICT, NOW RESIDING AT KRISHNAPRIYA,
OP(C).128 & 718/2021 3
KOTTUKARA, KONDOTTY P. O., MALAPPURAM.
2 THE KERALA STATE ELECTRONIC DEVELOPMENT CORPORATION
LTD.
(KELTRON), VELLAYAMBALAM, THIRUVANANTHAPURAM -
678683. REP. BY MANAGER.
3 THE DEPUTY COLLECTOR
LAND ACQUISITION (NATIONAL HIGHWAY), PALAKKAD.
4 THE CHIEF ENGINEER
NATIONAL HIGHWAY AUTHORITY OF INDIA, PALAKKAD.
BY ADVS.
SMT.M.A.ZOHRA, SC, KELTRON
SRI.K.A.SALIL NARAYANAN
THIS OP (CIVIL) HAVING COME UP FOR HEARING ON 27.8.2021,
ALONG WITH OP(C).128/2021, THE COURT ON 05.11.2021 DELIVERED
THE FOLLOWING:
OP(C).128 & 718/2021 4
V.G.ARUN, J.
-----------------------------------------------
O.P.(C) Nos. 128 & 718 of 2021
-----------------------------------------------
Dated this the 5th day of November, 2021
JUDGMENT
The petitioner is the judgment debtor in E.P.No.238 of
2011 on the files of the Principal Sub Court, Palakkad. The E.P
is filed seeking to execute the decree in O.S. No.306 of 1994 of
the Principal Sub Court, Ernakulam. The suit was decreed
allowing the plaintiff/decree holder to realise a sum of
Rs.8,66,590.85 together with interest from the defendant and
his assets. The decree was subsequently transmitted to the
Principal Sub Court, Palakkad, the immovable properties of the
judgment debtor being within the jurisdiction of that court. The
decree scheduled property is 20 cents of land (4 and 16 Cents)
in Sy. No. 288/2 in Vadakkencherry-II Village. After repelling
the challenge raised by the judgment debtor and third party
claimants, a portion of the property was brought to sale in the
execution proceedings and purchased by the decree holder on
10.12.2018. Thereupon, the judgement debtor filed an
application for setting aside the sale, alleging fraud and
irregularity. The execution court confirmed the sale in favour of
the decree holder after dismissing the judgment debtor's
application and closed the execution petition on 12.2.2019. In
the meanwhile, the National Highway Authority acquired 5
cents out of the decree scheduled property. On coming to know
about the acquisition, decree holder filed E.A.No.554 of 2019
seeking to set aside the order dated 12.2.2019 closing the
execution petition and to revive the E.P. Despite stout
opposition from the judgment debtor, the execution court
reopened the E.P. vide Exhibit P5 order, which is under
challenge in O.P(C).No.128 of 2021.
2. In the land acquisition proceedings, the decree holder
raised objection against disbursal of compensation fixed for the
acquired land to judgment debtor or his successor-in-interest.
The compensation amount was hence deposited in court and a
reference (LAR.No.1 of 2015) made to the District Court,
Palakkad under Section 3H(4) of the National Highways Act (for
short, 'the Act'). Dissatisfied with the compensation, the
judgment debtor's successor-in-interest took up the matter
before the Arbitrator and got the compensation enhanced to
Rs.4,83,849/-. The decree holder opposed disbursement of the
enhanced compensation and that amount was also deposited
and the dispute referred (LAR.No.2 of 2015) to the District
Court. In LAR.Nos.1 and 2 of 2015, the successor-in-interest of
the judgment debtor is shown as the first claimant, the decree
holder as the second claimant, the judgment debtor as the third
claimant and his wife as the fourth claimant. Therein, the first
claimant contended that he had purchased the acquired
property as per Document No.77 of 2003 of Alathur SRO and
the property was in his absolute ownership and possession and
hence, the entire compensation should be disbursed to him.
The 2nd claimant/ decree holder contended that the property
originally belonged to the 3rd claimant/judgment debtor and
was brought under attachment in O.S.No.306 of 1994. The
decree holder had purchased a portion of the property for of
Rs.8 lakhs and after deducting that amount, the balance
amount due from the judgment debtor is Rs.2,71,04,861.68.
The judgment debtor acknowledged the decree in O.S.No. 306
of 1994 and contended that the first claimant had knowledge
about the suit and the attachment when he purchased the
property. It was contended that the execution petition having
been closed, the compensation should be disbursed to the
judgment debtor. Answering the reference, the District Court
held that the deposited amount can be released to the decree
holder towards realisation of the decree debt in O.S.No.306 of
1994 of the Sub Court, Ernakulam. The challenge in
O.P(C).No.718 of 2021 is against the order in LAR.Nos.1 and 2
of 2015.
3. Sri.P.R.Venkatesh, learned Counsel for the petitioner
contended that, inasmuch as the decree in O.S.No.306 of 1994
was passed on 11.12.2006 and the execution petition closed on
12.2.2019, after expiring of 12 years, the court could not have
reopened the execution petition, in view of the time limit
stipulated in Article 136 of the Limitation Act. It is contended
that the finding of the court below that Article 136 of the
Limitation Act will not apply in reviving an execution petition
closed for statistical purposes, is made without taking into
account the fact that, in the instant case, the execution petition
was closed after the decree was executed by selling a portion of
the decree scheduled property. Moreover, execution petition is
sought to be reopened for the purpose of attaching the
compensation amount deposited in the District Court, which
amounts to initiation of fresh execution proceedings. Reliance
is placed on the decision in Mohanachandran v. Bhavani
Amma [2010 4 KLT 127] to buttress the argument. The
challenge against the reference order in LAR.Nos.1 and 2 of
2015 is on the premise that the respondent could not have
directly approached the District Court seeking release of the
compensation deposited by the Acquisition Authority and the
remedy was to approach the execution court. That remedy is
also not available, since the decree itself had become time
barred and the execution petition was closed after executing
the decree to the extent possible.
4. Smt.M.A.Zhora, learned counsel for the decree
holder, contended that the order reopening E.P.No.238 of 2011
warrants no interference, insofar as the order was passed in
accordance with the legal position laid down by a series of
decisions. It is contended that the decree holder is well within
his rights to seek revival of an execution petition closed for
statistical purposes and in such event, Article 136 of the
Limitation Act has no application. Learned counsel contended
that the petitioner had all throughout attempted to delay the
proceedings in the execution petition by setting up bogus
claims and filing unmerited applications. Having failed in his
attempts, petitioner and his men challenged the orders of the
execution court before the High Court repeatedly, but without
success. Learned counsel questioned the very maintainability of
O.P(C).718 of 2021 filed against the order in LAR Nos. 1 and 2
of 2015, contending that the petitioner has a statutory remedy
of appeal against the impugned order. On merits, it is
contended that the acquired property being under attachment
in the suit filed by the decree holder, and the judgment debtor
having failed to satisfy the decree, the compensation should be
disbursed to the decree holder and adjusted towards the decree
debt.
5. Sri.Salil Narayanan, learned Counsel appearing for
the National Highway Authority and the learned Government
Pleader also advanced arguments supporting the contentions of
the decree holder.
6. In the nature of the order that I propose to pass,
notice to the 1st respondent in O.P(C).No.718 of 2021 is
dispensed with.
7. The following facts are not in dispute; O.S.No.306 of
1994 was decreed by the Principal Sub Court, Ernakulam on
11.12.2006. The judgment debtor's property was brought
under attachment before judgment, as per order dated
18.5.1994 in I.A.No.2079 of 1994. The decree holder filed
E.P.No.238 of 2011 before the Sub Court, Palakkad on
10.12.2009. A portion of the property was brought to sale in
E.P.No.238 of 2011 and purchased by the decree holder on
10.11.2018. The execution petition was closed on 12.2.2019
after confirming the sale, without recording full satisfaction.
8. The challenge against the order of revival is primarily
based on Article 136 of the Limitation Act, on the premise that
the period of 12 years stipulated in Article 136 having expired
by the time the execution petition was closed, application for
reopening filed after the period is dismissed as time barred. As
per Article 136, the time stipulated for execution of a decree
directing payment of money is twelve years from the default in
respect of which the execution is sought. Indisputably, the
execution petition was filed well within the 12 year period and
was closed without recording full satisfaction. As such, the
closure was for statistical purposes only. As held by this Court
in Raichel v. Sheela Varghese (Order dated 16.10.2014 in
C.R.P.No.594 of 2014), there is no rule that revival of an E.P
closed for statistical purposes should be within a specific period.
When an execution petition is closed for statistical purposes, it
is deemed to be pending and only a formal petition is required
to revive the E.P. The exposition of the Hon'ble Supreme Court
in Pentapati China Venkanna v. Pentapati Bangararaju,
(AIR 1964 SC 1454) extracted here under makes the position
clear;
"6. Under Order 21 Rule 17(1) of the Code, the
Court may reject an execution application if the
requirements of Rules 11 to 14 have not been
complied with. Under Rule 23 thereof, if the judgment-
debtor does not appear or does not show cause to the
satisfaction of the court why the decree should not be
executed, the court shall order the decree to be
executed, and where such person offers any objection
to the execution of the decree, the Court shall consider
such objection end make such order as it thinks fit.
Under Rule 57 thereof, "Where any property has been
attached in execution of a decree but by reason of the
decree-holder's default the Court is unable to proceed
further with the application for execution, it shall either
dismiss the application or for any sufficient reason
adjourn the proceedings to a future date...". Relying
upon these provisions it is argued that though the
power of the court to make an order under Order 21,
Rule 23(2) is wide and it can make any order it thinks
fit, it can only make one or other of the two orders
mentioned in Rule 57 when it could not proceed with
the execution because of the default of the decree-
holder. It is said that in this case the decree-holders
could not proceed with the execution in view of the
stay order of the High Court and, therefore, the
executing court could have either dismissed the
application or adjourned the proceedings to a future
date and it has no jurisdiction to pass an order closing
the execution for statistical purposes. It is further said
that an order closing proceedings for statistical
purposes is not an order of adjournment, for an order
of adjournment implies that the application is on the
file, whereas the object of closing is to take it out of
the file, though temporarily, and, therefore, the order,
in effect and substance, is one of dismissal. Assuming
that the order was made by reason of the decree-
holder's default within the meaning of O. 21, Rule 57
of the Code, we find it difficult to attribute something
to the court which it never intended to do. It is true
courts have condemned the practice of executing
courts using expressions like "closed", "closed for
statistical purposes", "struck off", "recorded" etc., and
they also pointed out that there was no provision in
the Code of Civil Procedure for making such orders:
see Biswa Sonan Chunder Gossyamy v. Binanda
Chunder Dibingar Adhikar Gossyamy [(1884) ILR 10
Cal 416, 422] ; Vadlamannati Damodara Rao v. Official
Receiver, Kistna [ILR 1946 Mad 527] ; Moidin Kutty v.
Doraiswami [AIR 1952 Mad 51] . It is not necessary to
express our opinion on the question whether such
procedure is sanctioned by the Code of Civil Procedure
or not; but assuming that the court has no such
power, the passing of such an order cannot
tantamount to an order of dismissal, for the intention
of the court in making an order "closed" for statistical
purposes is, manifest. It is intended not to finally
dispose of the application, but to keep it pending.
Whether the order was without jurisdiction or whether
it was valid, the legal position would be the same; in
one case it would be ignored and in the other, it would
mean what it stated. In either case the execution
petition would be pending on the file of the court. That
apart, it is not the phraseology used by the executing
court that really matters, but it is really the substance
of the order that is material. Whatever, terminology
may be used, it is for the court to ascertain, having
regard to the circumstances under which the said order
was made, whether the court intended to finally
terminate the execution proceedings. If it did not
intend to do so, it must be held that the execution
proceedings were pending on the file of the court. We
have no hesitation, therefore, in agreeing with the
High Court that EP No. 13 of 1939 is pending on the
file of the executing court and that the present
application is only an application to continue the
same."
9. The next contention is that the execution petition is
sought to be reopened for resorting to an alternative mode of
execution, ie; attachment of the compensation deposited before
the District Court by the National Highways Authority. Being
so, the application should be treated as a fresh execution
petition, in which case the application is barred by limitation. A
learned judge of this Court in Porinchu v. John [1995 (2) KLT
339] considered a similar contention, and held as under;
"3. It is contended on behalf of the judgment
debtors based on the decisions in N.D. Namboodiri v.
K. Yohannan (1956 K.L.T. 888), Kochikka v. Kunju
Pennu (1963 K.L.T. 357) and Vasudevan Unnithan v.
Karthiyayani Amma (1966 K.L.T. 78) that the prayer
in E.A. 996 of 1992 for proceeding against the
property must be treated as the filing of a fresh
execution petition and since on the day E.A. 996 of
1992 was filed a fresh execution petition would be
barred, the decree holder could not seek to proceed
against the properties of the judgment debtors and
was obliged to pursue only his prayer in the original
execution petition for recovery of the decree amount
by the arrest and detention of the judgment debtors.
I notice that the decisions referred to by counsel for
the judgment debtors were all based on Section 48
of the Code of Civil Procedure which was deleted by
Section 28 of the Limitation Act of 1963. The original
prohibition against passing an order for execution of
a decree on a fresh application presented after the
expiration of twelve years from the date of the
decree has thus been omitted. Instead Article 136 of
the Limitation Act, 1963 only prescribes for a period
of twelve years from the date when the decree
becomes enforceable for execution of any decree
other than a decree granting mandatory injunction.
In such a situation all that the decree holder is
obliged to do is to file a petition for execution, of the
decree within 12 years. The fact that he initially
chose one of the alternate modes available to him to
enforce the decree, would not preclude him from
opting for another mode, so long as his execution
petition is pending and he has failed to realise the
fruits of his decree through the mode he had initially
chosen. In my view, the theory that seeking to adopt
another mode for realising the fruits of a decree in a
pending execution petition would amount to initiating
a fresh execution, cannot have any effect in cases
governed by Article 136 of the Limitation Act and in
the absence of a provision like Section 48 of the
Code of Civil Procedure. The wording of section 48 of
the Code clearly indicated that even in a pending
execution petition, no fresh application for execution
could be presented after the expiration of 12 years
from the date of the decree. Section 48 of the Code
having been deleted and such a bar having been
removed, it cannot be said that an alternative mode
of executing the decree cannot be sought for, in a
pending execution petition, even after the expiry of
12 years from the decree. All that is now needed, is
that an execution petition should have been filed
within 12 years of the decree. Here such an
execution petition is still pending."
10. Later, in Mohanachandran, another learned Judge,
after elaborate precedential survey and analysis of the
provisions, respectfully disagreed (sic) with Porinchu (supra)
and held that, when an application for amendment of a pending
execution petition, or an application containing an alternative
mode of execution, is made or if the decree holder wants to
proceed against a new item of property not included in the
pending execution petition, it is a fresh application and hence
would be subject to the period of limitation prescribed under
Art. 136.
11. The dictum in Mohanachandran had no application
herein, since the decree holder is not seeking to include any
new item of property or to resort to a new mode of execution.
The execution petition is reopened for effecting attachment of
the amount deposited in court towards compensation for the
property already under attachment at the decree holder's
instance.
12. In order to answer the challenge against the order in
the LAR's it is essential to have a look at Section 3-H of the
National Highways Act, 1956.
Section 3-H. Deposit and payment of amount.
--(1) The amount determined under Section 3-G shall
be deposited by the Central Government in such
manner as may be laid down by rules made in this
behalf by that Government, with the competent
authority before taking possession of the land.
(2) As soon as may be after the amount has been
deposited under sub-section (1), the competent
authority shall on behalf of the Central Government
pay the amount to the person or persons entitled
thereto.
(3) Where several persons claim to be interested in
the amount deposited under sub-section (1), the
competent authority shall determine the persons who
in its opinion are entitled to receive the amount
payable to each of them.
(4) If any dispute arises as to the apportionment of
the amount or any part thereof or to any person to
whom the same or any part thereof is payable, the
competent authority shall refer the dispute to the
decision of the principal civil court of original
jurisdiction within the limits of whose jurisdiction the
land is situated.
(5) Where the amount determined under Section 3-G
by the arbitrator is in excess of the amount
determined by the competent authority, the arbitrator
may award interest at nine per cent, per annum on
such excess amount from the date of taking
possession under Section 3-D till the date of the actual
deposit thereof.
(6) Where the amount determined by the arbitrator is
in excess of the amount determined by the competent
authority, the excess amount together with interest, if
any, awarded under sub-section
(5) shall be deposited by the Central Government in
such manner as may be laid down by rules made in
this behalf by that Government, with the competent
authority and the provisions of sub-sections (2) to (4)
shall apply to such deposit.
As per Section 3-H(3), the Competent Authority is empowered
to decide the persons entitled for receiving the compensation
and as per Sub-section(4), disputes regarding apportionment
among claimants can be decided by the Principal Civil Court
having jurisdiction. Here, the Competent Authority as well as
OP(C).128 & 718/2021 20
the Arbitrator under the Act deemed it appropriate to refer the
dispute among the claimants to the Principal Civil Court.
Accordingly, the District Court has answered the reference,
finding the decree holder to be the legitimate claimant. I find
no reason to interfere with the said finding, since the acquired
property is under attachment at the instance of the decree
holder and the decree remains unsatisfied. The contention that
the remedy of the decree holder is to approach the execution
court is rejected for the same reason.
For the aforementioned reasons, the original petitions are
dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX OF OP(C) 718/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE AWARD DATED 22.12.2020
PASSED BY THE DISTRICT COURT, PALAKKAD IN
LAR NOS. 1/2015 AND 2/2015.
EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE
PRINCIPAL SUB COURT, PALAKKAD IN EA
NO.554/2019 IN EP NO. 238/2011 IN OS
NO.306/1994.
EXHIBIT P3 TRUE COPY OF THE E.P.NO.238/2011 IN OS
NO.306/1994 PASSED BY THE SUB COURT,
ERNAKULAM.
APPENDIX OF OP(C) 128/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE EA NO.554/2019 OF THE
FILED BEFORE THE SUB JUDGE, PALAKKAD.
EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT IN
E.A.NO.554/2019 ON THE FILES OF SUB JUDGE,
PALAKKAD.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16/10/2014 IN
CRP NO.594/2014 OF THIS HON'BLE COURT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THE MADRAS
HIGH COURT IN AIR 1992 MADRAS 48.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 13/7/2020 IN
E.A.NO.554/2019 IN E.P.NO.238/2011 IN OS
NO.306/1994 PASSED BY THE PRINCIPAL SUB
COURT, PALAKKAD.
EXHIBIT P6 TRUE COPY OF THE E.P. NO-238/2011 IN OS
NO-306/1994 FILED BEFORE THE SUB COURT,
PALAKKAD,
