Kerala High Court

Director vs Amina Hydhrose on 12 April, 2024

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
  FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                           CRP NO. 86 OF 2022
AGAINST    THE   ORDER    DATED      15.12.2021   IN     E.A    758/2021    EP
668/2014    IN   LAR     NO.6   OF    2010   OF     II     ADDITIONAL      SUB
COURT,THRISSUR
PETITIONER/RESPONDENT NO.2/JD NO.2

            DIRECTOR, 'KILA'(KERALA INSTITUTE OF LOCAL
            ADMINISTRATION), MULANKUNNATHUKAVU P.O.,
            THRISSUR-680 581
            BY ADVS.
            K.B.MOHANDAS
            P.B.KRISHNAN
            P.B.SUBRAMANYAN
            SABU GEORGE
            MANU VYASAN PETER
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 3/DHs AND Jds
1 AND 3

    1       AMINA HYDHROSE,D/O.HYDROSE, PUTHIYA VEETIL,
            KIZHUPPILLIKKAA, THRISSUR-680 702, REPRESENTED BY
            HER POWER OF ATTORNEY HOLDER SUHARA HYDROSE,
            W/O.HYDHROSE, PUTHIYA VEETTIL, KIZHUPPILLIKKARA,
            THRISSUR-680 702.
    2       SPECIAL TAHSIDLAR,L.A. GENERAL, TALUK OFFICE,
            CHEMBUKKAV, THRISSUR-680 020
    3       DISTRICT COLLECTOR,
            CIVIL STATION, AYYANTHOLE, THRISSUR-680 003
            BY ADVS.
            E.ADITHYAN
            MEERA RAMESH
            E.RAJAN
            INDIRA RAJAN
     THIS    CIVIL     REVISION       PETITION    HAVING       COME   UP   FOR
ADMISSION ON 12.04.2024, ALONG WITH CRP.88/2022, 89/2022
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                   CRP NO. 88 OF 2022
AGAINST THE ORDER DATED 15.12.2021 IN E.A 759/2021 IN
EP 660/2014 IN LAR NO.3 OF 2010 OF II ADDITIONAL SUB
COURT,THRISSUR
PETITIONER/RESPONDENT NO.2/JD NO.2:
         DIRECTOR, KILA( KERALA INSTITUTE OF LOCAL
         ADMINISTRATION), MULANKUNNATHUKAVU P.O.,
         THRISSUR-680 581
          BY ADVS.K.B.MOHANDAS
          P.B.KRISHNAN
          P.B.SUBRAMANYAN
          SABU GEORGE
          MANU VYASAN PETER
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 3/DHs AND
JDs 1 AND 3

    1    SUHARA HYDHROSE,W/O. HYDHROSE, PUTHIYA
         VEETTIL, KIZHUPPILLIKKARA, THRISSUR-680 702
    2    SHANAVAS HYDHROSE NAIKKAR,S/O. HYDHROSE,
         PUTHIYA VEETTIL, KIZHUPPILLIKKARA, THRISSUR-
         680 702, REPRESENTED BY HIS POWER OF ATTORNEY
         HOLDER SUHARA HYDHROSE, W/O. HYDHROSE, PUTHIYA
         VEETTIL, KIZHUPPILLIKKARA, THRISSUR-680 702
    3    SHAHEENAS ASIM,D/O. HYDHROSE, PUTHIYA VEETTIL,
         KIZHUPPILLIKKARA, THRISSUR-680 702,
         REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
         SUHARA HYDHROSE, W/O. HYDHROSE, PUTHIYA
         VEETTIL, KIZHUPPILLIKKARA, THRISSUR-680 702
    4    SAGEER HYDHROSE,S/O. HYDHROSE, PUTHIYA
         VEETTIL, KIZHUPPILLIKKARA, THRISSUR-680 702.
    5    SPECIAL TAHSILDAR,
         L.A GENERAL, TALUK OFFICE, CHEMBUKKAVU,
         THRISSUR-680 020
             CRP NO. 88 OF 2022
                                         2



    6       DISTRICT COLLECTOR,
            CIVIL STATION, AYYANTHOLE, THRISSUR-680 003


            BY ADVS.
            E.ADITHYAN
            MEERA RAMESH
            E.RAJAN
            INDIRA RAJAN


        THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION    ON   12.04.2024,    ALONG   WITH   CRP.86/2022   AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                      CRP NO. 89 OF 2022
AGAINST THE ORDER DATED 15.12.2021 IN EA 754/2021 IN
E.P 658/2014 IN LAR NO.7 OF 2010 OF II ADDITIONAL SUB
COURT,THRISSUR
PETITIONERS/DECREE HOLDERS:

    1       AISHA,W/O PRASAD, THARA NILATH VEEDU, POOVANI,
            KOLAZHI, THRISSUR-680 001, REPRESENTED BY
            POWER OF ATTORNEY HOLDER BIJOY PRASAD, S/O.
            PRASAD, THARA NILATH VEEDU, POOVANI, KOLAZHI,
            THRISSUR-680 010
    2       BIJOY PRASAD,S/O PRASAD, THARA NILATH VEEDU,
            POOVANI, KOLAZHI, THRISSUR-680 001
            BY ADVS.
            P.B.KRISHNAN
            P.B.SUBRAMANYAN
            SABU GEORGE
            MANU VYASAN PETER
            K.B.MOHANDAS
RESPONDENTS/JUDGMENT DEBTORS:

    1       SPECIAL TAHSILDAR , L.A GENERAL, TALUK OFFICE,
            CHEMBUKAVU, THRISSUR-680 020
    2       DIRECTOR, 'KILA', MULANKUNNATHUKAVU
    3       DISTRICT COLLECTOR,
            CIVIL STATION, AYYANTHOLE, THRISSUR-680 003
            BY ADVS.
            E.ADITHYAN
            MEERA RAMESH
            K.INDIRA
            RAJAN E.
        THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION    ON   12.04.2024,   ALONG   WITH   CRP.86/2022   AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                      CRP NO. 90 OF 2022
AGAINST THE ORDER     DATED 15.12.2021 IN E .A 756/2021 IN
E.P 659/2014 IN LAR NO.5 OF 2010 OF II ADDITIONAL SUB
COURT,THRISSUR
PETITIONER/RESPONDENT NO.2/JD NO.2:

            DIRECTOR,KILA (KERALA INSTITUTE OF LOCAL
            ADMINISTRATION),MULANKUNNATHUKAVU
            P.O.THRISSUR-680 581
            BY ADVS.
            P.B.KRISHNAN
            P.B.SUBRAMANYAN
            SABU GEORGE
            MANU VYASAN PETER
            K.B.MOHANDAS
RESPONDENT/S:

    1       MUHAMMAD BASHEER,S/O KOCHUVARU, KADAVIL HOUSE,
            KIZHUPPILLIKKARA, THRISSUR-680 702,
            REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
            SUHARA HYDHROSE, W/O HYDHROSE, PUTHIYA VEETTIL
            KIZHUPPILLIKKARA, THRISSUR-680 702
    2       SPECIAL TAHSILDAR, L.A.GENERAL, TALUK OFFICE,
            CHEMBUKKAV, THRISSUR-680 020.
    3       DISTRICT COLLECTOR,
            CIVIL STATION, AYYANTHOLE, THRISSUR-680 003.
            BY ADVS.
            E.ADITHYAN
            MEERA RAMESH
            E.RAJAN
            INDIRA RAJAN


        THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION    ON   12.04.2024,   ALONG   WITH   CRP.86/2022   AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                      CRP NO. 91 OF 2022
AGAINST THE ORDER DATED 15.12.2021 IN E.A 755/2021 IN
E.P 669/2014 IN LAR NO.8 OF 2010 OF II ADDITIONAL SUB
COURT,THRISSUR
PETITIONER/RESPONDENT NO.2/JD NO.2

            DIRECTOR,KILA (KERALA INSTITUTE OF LOCAL
            ADMINISTRATION),MULANKUNNATHUKAVU
            P.O.THRISSUR-680 581
            BY ADVS.K.B.MOHANDAS
            P.B.KRISHNAN
            P.B.SUBRAMANYAN
            SABU GEORGE
            MANU VYASAN PETER
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 3/DHs AND
Jds 1 AND 3

    1       AMINA HYDHROSE,D/O.HYDROSE, PUTHIYA VEETIL,
            KIZHUPPILLIKKAA, THRISSUR-680 702, REPRESENTED
            BY HER POWER OF ATTORNEY HOLDER SUHARA
            HYDROSE, W/O.HYDHROSE, PUTHIYA VEETTIL,
            KIZHUPPILLIKKARA, THRISSUR-680 702.
    2       SPECIAL TAHSILDAR,
            L.A GENERAL,TALUK OFFICE, CHEMBUKKAV, THRISSUR
            680020.
    3       DISTRICT COLLECTOR,CIVIL STATION,AYYANTHOLE,
            THRISSUR 680003.
            BY ADVS.E.ADITHYAN
            GOVERNMENT PLEADER
            MEERA RAMESH
            E.RAJAN
            INDIRA RAJAN
        THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION    ON   12.04.2024,   ALONG   WITH   CRP.86/2022   AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                        CRP NO. 93 OF 2022
AGAINST THE ORDER DATED 15.12.2021 INEA 757/2021 IN              EP
667/2014    IN    LAR   NO.4   OF    2010   OFII   ADDITIONAL    SUB
COURT,THRISSUR
PETITIONER/RESPONDENT NO.2/JD NO.2

            DIRECTOR, KILA(KERALA INSTITUTE OF LOCAL
            ADMINISTRATION), MULANKUNNATHUKAVU P.O.,
            THRISSUR-680581.
            BY ADVS.K.B.MOHANDAS
            P.B.KRISHNAN
            P.B.SUBRAMANYAN
            SABU GEORGE
            MANU VYASAN PETER
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 3/DHs AND
JDs 1 AND 3

    1       RUKHIYA,W/O. MUHAMAD BASHEER, (WRONGLY WRITTEN
            AS S/O. IN THE COURT BELOW) KADAVIL HOUSE,
            KIZHUPPILLIKKARA, THRISSUR-680702, REPRESENTED
            BY HER POWER OF ATTORNEY HOLDER SUHARA
            HYDHROSE, W/O. HYDHROSE, PUTHIYA VEETTIL,
            KIZHUPPILLIKKARA, THRISSUR-680702.
    2       SPECIAL TAHSILDAR,L.A. GENERAL, TALUK OFFICE,
            CHEMBUKKAV, THRISSUR-680020.
    3       THE DISTRICT COLLECTOR,CIVIL STATION,
            AYYANTHOLE, THRISSUR-680003.
            BY ADVS.E.ADITHYAN
            GOVERNMENT PLEADER
            MEERA RAMESH
            E.RAJAN
            INDIRA RAJAN
        THIS CIVIL REVISION PETITION HAVING COME UP FOR
ADMISSION    ON   12.04.2024,       ALONG   WITH   CRP.86/2022   AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                                 "C.R"

               C.JAYACHANDRAN, J.
            =======================
   C.R.P. Nos.86 of 2022, 88 of 2022, 89 of
  2022, 90 of 2022, 91 of 2022 & 93 of 2022
           ========================
    Dated this the 12th day of April, 2024

                      COMMON JUDGMENT

The common question which surfaces for

consideration in these Revision Petitions is as

follows:

      Whether     the        appellant        in       a      Land

      Acquisition          Appeal   -   carried        from      a

reference answered in terms of Section 18

of the Land Acquisition Act, 1894 - is

entitled to specify the manner of

appropriation in respect of a payment

made pursuant to an interim order passed

in the Land Acquisition Appeal for

staying the Award passed by the reference

court?

C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

2. In the orders impugned in these Revision

Petitions, the learned Additional Sub Judge found

that the petitioner herein (second respondent

before the Sub Court) has no right to claim

appropriation.

3. It requires to be mentioned at the outset that

the Land Acquisition Appeals were ultimately

dismissed. There is no quarrel before this Court

amongst the parties that, if the appropriation as

indicated by the judgment debtor in the statement

of accounts dated 11.03.2015 is permissible in law,

the entire Award amount stands wiped of; whereas,

if such appropriation is impermissible, the decree

holders are entitled to get the E.P reopened, so as

to claim the balance amount due.

C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

4. Heard Sri.P.B.Krishnan, learned counsel for the

petitioners, Sri.Vinod Bhat, learned counsel for

the first respondent and the learned Government

Pleader on behalf of the other respondents.

5. Learned counsel for the petitioners would

essentially submit that a Constitution Bench

judgment of the Hon'ble Supreme Court in Gurpreet

Singh v. Union of India [2006(8) SCC 457] was not

correctly followed by the learned Sub Judge. In

elaboration, learned counsel would point out that

the contents of paragraph no.52 of the said

judgment was read in isolation, divorced from the

entire gamut of the dictum laid down by the

Constitution Bench, which perpetrated the error,

resulting in dismissal of the petitioners' claim

for appropriation. Learned counsel would point out C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

that the judgment debtor's right of specifying the

appropriation when a deposit is made to the court

as against the sum awarded in the decree/Award is

upheld in paragraph no. 51 of the judgment of the

Constitution Bench. Once the decree holder receives

the payment of the amount so deposited, he would

necessarily be accepting the appropriation made by

the judgment debtor. This dictum of the Hon'ble

Supreme Court in Prem Nath Kapur v. National

Fertilizers Corporation of India Ltd. [1996(2)SCC

71] was upheld by the Constitution Bench. In

paragraph no.53 of the judgment, the Constitution

Bench re-iterated such right of the judgment debtor

to appropriate the amount deposited, even when

there is a short fall at a particular stage. The

ratio laid down in Prem Nath Kapur(supra) on the

aspect of appropriation was specifically approved C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

by the Constitution Bench, as is decipherable from

paragraph 53 of the judgment. In such

circumstances, reading and relying upon the

contents in paragraph no.52, divorced from the

essential dictum laid down by the Constitution

Bench, as contained in paragraph nos.51 and 53, is

grossly illegal, is the submission made. Learned

counsel would hasten to add that the payment made

pursuant to an interim order would still retain the

character of a part-payment made to the amount

covered by the Award/decree, wherefore, the right

of the judgment debtor to specify the appropriation

of the amount cannot be obliterated, more so when

such right is reinforced and reiterated by the

Constitution Bench. According to the learned

counsel, the impugned order cannot be sustained

which negates such right of the judgment debtor, C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

especially when there is no quarrel on facts that

the statement of accounts dated 11.03.2015 made by

the judgment debtor specifically indicates the

appropriation to be made in respect of the payment

made pursuant to the interim order of the High

Court.

6. Per contra, learned counsel for the first

respondent would submit that in the absence of an

enabling direction in the interim order, the

judgment debtor is not at liberty in law to

suggest/indicate any appropriation. Learned counsel

would submit that the legal position as regards the

right, if any, of the judgment debtor in the matter

of appropriation, when a payment is made pursuant

to an interim order for staying the Award/decree,

is not res integra. The specific situation was C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

dealt with by the Constitution Bench in Gurpreet

Singh (Supra) in paragraph no.52, where the Hon'ble

Supreme Court held that the amount so paid will be

received by the decree holder on the strength of

the interim order and that the appropriation will

be subject to the decision in the appeal. If such

appeal is disposed of in favour of the decree

holder, he would be entitled to appropriate the

amount received first towards interest, then

towards costs and the balance towards principal, as

has been clearly held by the Constitution Bench.

According to the learned counsel, the impugned

order warrants no interference in the revision.

7. Learned Government Pleader would endorse the

submissions made on behalf of the petitioners. C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

8. Having bestowed my attention to the arguments

addressed by the learned counsel for the parties,

this Court can only endorse the submissions made by

the learned counsel for the first respondent.

9. For a correct appreciation, it is necessary to

have a glance on the matter referred to the

Constitution Bench and the circumstances warranting

such reference. In Premnath Kapoor (supra), a

three judges bench of the Hon'ble Supreme Court

held that the expression 'compensation' under

Section 23(1) of the Land Acquisition Act, 1894

excludes solatium and that no interest is payable

on solatium or on the additional amount under

Section 23(1A) of the Act. Premnath Kapoor(supra)

also held that the claimant is not entitled to any

appropriation of the amount deposited by the C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

judgment debtor and that the right to make

appropriation is there in the Award itself, by

necessary implication. That part of Premnath

Kapoor(supra) which held that compensation excludes

solatium and that no interest is payable on

solatium was overruled by a Constitution Bench of

the Hon'ble Supreme Court in Sundar v. Union of

India [2001(7) SCC 211]. However, the second

aspect of Prem Nath Kapur, which dealt with

appropriation, was not overruled in Sundar (supra).

When Gurpreet Singh came up for consideration, the

learned judges doubted the correctness of that

dictum as well and sought for re-consideration of

the same by a Constitution Bench. It is accordingly

that the matter was posted before the Constitution

Bench. Thus, the rule of appropriation in execution

of money decrees in general, and the rule in the C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

case of an Award/decree under the Land Acquisition

Act in particular, were considered by the

Constitution Bench. In paragraph no.7, the specific

question regarding the rule of appropriation in

case of part-payments being effected, is seen posed

for consideration. After considering various

judgments on the point, as also the statutory

provisions, especially Sections 59 to 61 of the

Contract Act, Order 21 Rule 1, Order 24 Rule 3 etc.

and also the peculiar scheme of the Land

Acquisition Act, the Constitution Bench concluded

its findings in paragraph nos.49, 50, 51, 52, 53

and 54 of the judgment. In paragraph no.49, it was

held that the right of appropriation of a decree

holder on the payments made by the judgment debtor

could only be as provided in the decree, if there

is provision in that behalf in the decree; or as C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

contemplated by Order 21 Rule 1 of the Code of

Civil Procedure as explained by the Constitution

Bench. In paragraph 50, the Constitution Bench

deviated slightly from the reasoning in Prem Nath

Kapur(supra) to hold that even going by Order 21

Rule 1, the legal position will be as envisaged in

Prem Nath Kapur(supra).

10. The important discussion is contained in

paragraph 51, wherein the Constitution Bench took

note of the dictum laid down in Prem Nath

Kapur(supra) that, when an Award/decree is passed

specifying the amounts under different heads and

the judgment debtor makes a deposit of specified

sums under these heads, the same will amount to an

intimation being made by the judgment debtor to the

decree holder as to how the sum deposited is to be C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

applied in discharge of the obligation of the

judgment debtor. Prem Nath Kapur also held that

once a decree holder receives payment of the sums

thus deposited, he would also be accepting the

appropriation made by the judgment debtor. The

Constitution Bench held that going by the scheme of

the Act, it cannot be said that the approach made

in Prem Nath Kapur(supra) is erroneous or

unreasonable. Thereafter the constitution bench

reiterated the legal position thus:

"Therefore, when the judgment debtor State makes a deposit along with the calculation appropriating distinct sums towards various heads of compensation as awarded by the Reference Court or by the appellate court in the appellate decree, and the amount is received by the decree holder, the decree-holder must be C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

taken to be not entitled to seek an appropriation as if the judgment debtor has not made any intimation and that he is entitled to appropriate at his volition. Considering the scheme of compensation under the Act in the context of the specific nature of the items specifically referred to in S.23 of the Act, we are of the view that the approach adopted in Prem Nath Kapur is justified."

11. Then, the specific issue as to how a payment,

if deposited pursuant to an interim order of the

appellate court, is liable to be dealt with, is

seen addressed in paragraph no.52, which is

extracted hereunder:

"What is to happen when a part of the amount awarded by the Reference Court or C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

by the appellate court is deposited pursuant to an interim order of the appellate court or of the further appellate court and the awardee is given the liberty to withdraw that amount? In such a case, the amount would be received by the decree holder on the strength of the interim order and the appropriation will be subject to the decision in the appeal or the further appeal and the direction, if any contained therein. In such a case, if the appeal is disposed of in his favour, the decree holder would be entitled to appropriate the amount already received by him pursuant to the interim order first towards interest then towards costs and the balance towards principal as on date of the withdrawal of the amount and claim interest on the balance amount of enhanced compensation by levying execution. But on the part appropriated towards the principal, the C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

interest would cease from the date on which the amount is received by the awardee. Of course, if while passing the interim order, the court has indicated as to how the deposited amount is to be appropriated, that direction will prevail and the appropriation could only be done on the basis of that direction."

12. Again in paragraph no.53, the Constitution

Bench specifically upheld Premnath Kapoor (supra)

on the aspect of appropriation in the following

words:

"Thus, on the whole, we are satisfied that the essential ratio in Prem Nath Kapur on appropriation being at different stages is justified though if at a particular stage there is a shortfall, the awardee-decree-holder C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

would be entitled to appropriate the same on the general principle of appropriation, first towards interest, then towards costs and then towards the principal, unless, of course, the deposit is indicated to be towards specified heads by the judgment debtor while making the deposit intimating the decree holder of his intention. We, thus, approve the ratio of Prem Nath Kapur on the aspect of appropriation."

13. It could thus be seen that the hallmark of the

dictum laid down by the Constitution Bench of

the Hon'ble Supreme Court is that the right

of the judgment debtor in the context of

appropriation - when amounts are paid in

satisfaction of a decree, no matter whether such

amounts are paid in complete discharge of the

decree debt or in cases where there is a short C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

fall - is upheld. The argument advanced by the

learned counsel for the petitioners that, a payment

made pursuant to an interim order of an appellate

court, though as a pre-condition to obtain a stay

of operation of the impugned judgment, nevertheless

retains the character of a part payment of the

decree debt, when viewed from a broader conspectus

is also prima facie quite attractive. Proprio

vigore, it could possibly be argued that so long as

such payment tantamounts to part payment of the

decree debt, the right of the judgment debtor in

the matter of appropriation cannot be held to be

obliterated or forfeited. However, in as much as

the specific issue has been dealt with by the

Constitution Bench and has been answered in favour

of the decree holder recognising his right to

appropriate such payments first towards interest, C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

then towards costs and the balance only towards

principal, the said arguments of the learned

counsel for the petitioner are no more germane for

consideration. Two aspects assume significance in

this context. The first is that a payment made

pursuant to an interim order of the court is not

voluntary in nature. The voluntary character of the

payment, though in the context of Sections 59 to 61

of the Contract Act, gained the attention of the

Full Bench of the Lahore High Court in Jia Ram v.

Sulakhan Mal [AIR 1941 LAH 386], which judgment was

taken stock of by the Constitution Bench in

Gurpreet Singh (supra) (See paragraph no.22). The

second aspect is again with respect to the nature

and character of a payment made pursuant to an

interim order by an appellate court. The

constitution bench clarified the same in paragraph C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

no.51 that "the amount would be received by the

decree holder on the strength of the interim order

and the appropriation will be subject to the

decision in the appeal." Based on the outcome of

the appeal, the Supreme Court held that the decree

holder would be entitled to appropriate the money

as indicated above, the relevant findings of which

are again extracted here below:

"In such a case, if the appeal is disposed

of in his favour, the decree holder would

be entitled to appropriate the amount

already received by him pursuant to the

interim order first towards interest, then

towards costs and the balance towards

principal as on the date of withdrawal of

the amount ....."

C.R.P Nos.86/2022, 88/2022, 89/2022, 90/2022, 91/2022 & 93/2022 of 2021

14. It could thus be seen that a distinction is

seen drawn in respect of payments made pursuant to

interim order, firstly by specifying that the

appropriation will be subject to the decision in

the appeal and then, by holding that if the appeal

is in favour of the decree holder, he would be

entitled to appropriate the payment in the manner

indicated above.

15. In view of the above authoritative

pronouncement by a Constitution Bench of the

Hon'ble Supreme Court specifically dealing with the