Orissa High Court
Parbati Das vs East Coast Railways And Others on 28 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 753 of 2022
Parbati Das ..... Petitioner
Mr. Kishore Kumar Jena, Advocate
-versus-
East Coast Railways and others .... Opp. Parties
Mr.Alok Kumar Mohanty,
Central Government Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 28.09.2022
2. 1. This matter is taken up through hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated
29th June, 2022 (Annexure-4) passed by learned 1st Additional
Civil Judge (Senior Division), Cuttack in Execution Case No.25
of 2021, whereby the execution case was disposed of with an
observation that the decree is fully satisfied`.
3. Mr. Jena, learned counsel for the Petitioner submits that
the Petitioner/DHr. had filed Execution Case No.25 of 2021 for
execution of judgment and decree passed in RFA No.73 of
2015 (Annexure-2). The relevant portion of the judgment dated
16th July, 2019 passed by learned 1st Additional District Judge,
Cuttack in RFA No.73 of 2015 is quoted hereunder for ready
reference.
// 2 //
"The Jdr. No.1 is directed to pay total
compensation amount of Rs.8,15,400/- (Rupees eight lakhs
fifteen thousand and four hundred only) with simple
interest of 8% per annum with effect from the date of filing
of the suit i.e., 15.07.2009 to the appellant/plaintiff through
the learned court below within two months hence, failing
which the appellant-plaintiff would be at liberty to realize
the awarded amount along with the interest @ 12% per
annum after completion of two months from the date of
judgment till the payment is made from Respondent
No.1/Jdr. No.1 through the process of law.
In the event of making such payment, the same shall
be disbursed by the learned Court below to the plaintiff-
appellant in the following manner.
Out of the total awarded compensation amount a
sum of Rs.6,00,000/- (Rupees six lakhs only) shall be
deposited in the name of Appellant-Plaintiff namely Parbati
Das (mother of the deceased) in the said fixed deposit in
any nationalized Bank for a period of six years with
quarterly interest payable to her; and the balance amount
along with the interest accrued on the total compensation
amount be released in favour of the Appellant-Plaintiff
(mother of the deceased) by way of cash.
The concerned Bank is directed not to allow any
loan or advance of the fixed deposit treating the same as
security nor it shall allow any premature withdrawal of the
same without leave of the court."
Since the Opposite Parties/JDrs. failed to comply with the
aforesaid judgment and decree, the Petitioner filed Execution
Case No.25 of 2021. On the date of filing of the filing the
Execution Case, the outstanding amount including principal and
interest was Rs.12,14,946/-. Accordingly, the Petitioner/DHr.
pressed for realization of the aforesaid amount. Subsequently,
Opposite Parties/ JDrs. appeared and accepting the prayer made
in the Execution Case, deposited the aforesaid amount. In the
meantime, one year had already elapsed. Hence, the Petitioner
filed an application claiming an additional amount of
Rs.8,44,200/- along with 12% interest on the said amount with
// 3 //
effect from 6th April, 2022 till the date of payment. Learned
executing Court although referred to the application in the
impugned order, but without considering the same has passed
the impugned order, holding that the prayer in the Execution
Case was made for payment of Rs.12,14,946/-, and the said
amount had already been deposited by the Opposite Parties
without any objection, dropped the execution case with an
observation that the decree was satisfied. It is submitted by Mr.
Jena, learned counsel for the Petitioner that amount mentioned
in the execution case was on the date of filing of the execution
petition. But, by the time the deposit was made by the Opposite
Party/JDrs., one year had already elapsed. Hence, they are
liable to pay interest for the aforesaid period in terms of the
judgment and decree put to execution. This aspect was not
taken into consideration by learned executing Court. Hence, the
impugned order should be set aside and the matter may be
remitted back to learned executing Court to consider the
petition filed by the DHrs.
4. Mr. Mohanty, learned Central Government Counsel
contesting the above, submits that execution proceeding arises
out of a money decree and it was filed for realization of
Rs.12,14,946/-. The Opposite Parties/JDrs. accepting the same
deposited the entire amount. In that view of the matter learned
executing Court has not committed any error in disposing of the
execution case.
5. Taking into consideration the rival contentions of the
parties, this Court is of the considered opinion that the amount
so mentioned in the execution petition was due on the date of
// 4 //
filing of the execution proceeding. Had the amount been
deposited on the date of filing of the execution petition,
Petitioner/DHr. would not have any grievance to the same. But
it appears that Opposite Parties/JDrs. deposited the amount
after lapse of almost one year.
6. In that view of the matter, the Petitioner/DHr. is entitled
to the interest, as directed till the amount is realized. This
aspect was not considered by the learned executing Court
adjudicating the Execution case No. 25 of 2021. In view of the
above, impugned order dated 29th June, 2022 under Annexure-4
is set aside and the matter is remitted back to executing Court to
adjudicate upon the petition filed by the Petitioner on 19th May,
2022 giving opportunity of hearing to Opposite Parties/JDrs. to
file their objections so also opportunity to the parties concerned
to have their say in the matter.
7. With the aforesaid observation, the CMP is disposed of.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
