M/S C.K.C.B. Agencies v. Kerala State Electronics Development Corporation Ltd. (KELTRON) and others

_**OP(C).128 & 718/2021**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 5[TH] 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 5[TH] 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 5[th] 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 _**OP(C).128 & 718/2021**_ 5 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, _**OP(C).128 & 718/2021**_ 6 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 2[nd] 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 _**OP(C).128 & 718/2021**_ 7 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 _**OP(C).128 & 718/2021**_ 8 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. _**OP(C).128 & 718/2021**_ 9 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 _**OP(C).128 & 718/2021**_ 10 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 _**OP(C).128 & 718/2021**_ 11 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**_ , _**OP(C).128 & 718/2021**_ 12 ## (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 judgmentdebtor 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 decreeholder. It is said that in this case the decree-holders could not proceed with the execution in view of the_ _**OP(C).128 & 718/2021**_ 13 _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 decreeholder'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_ _**OP(C).128 & 718/2021**_ 14 _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 _**OP(C).128 & 718/2021**_ 15 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_ _**OP(C).128 & 718/2021**_ 16 _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_ _**OP(C).128 & 718/2021**_ 17 _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 _**OP(C).128 & 718/2021**_ 18 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_ _**OP(C).128 & 718/2021**_ 19 _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_ _**OP(C).128 & 718/2021**_ 21 ## **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. _**OP(C).128 & 718/2021**_ 22 ## **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,