VIJAYAN IYER S/O. RAMANATHA IYER v P.V.VENKITASUBRAMANIYAN and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 4081 of 2008(J) ------------------------OS.118/1975 of PRL.SUB COURT,THRISSUR .................... PETITIONER(S): --------------VIJAYAN IYER S/O.RAMANATHA IYER,'UNNI NIVAS' PAVARATTY VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT(S): - --------------- 1. P.V.VENKITASUBRAMANIYAN - S/O.P.V.VISWANATHA IYER - P.O. MARUTHAYOOR, PAVARATTY, THRISSUR. 2. P.V.VARADARAJA IYER - P.O. MARUTHAYOOR, PAVARATTY, THRISSUR. 3. P.V.GEETHALAKSHMY - C/O.JUNJULAKSHMI, OPP. GOVERNMENT HIGH SCHOOL CHAVAKKAD. 4. JUNULAKSHMI,GOVERNMENT HIGH SCHOOL CHAVAKKAD THRISSUR. 5. P.V.MAHALAKSHMI,C/O.JUNJULAKSHMI, - OPP. GOVERNMENT HIGH SCHOOL CHAVAKKAD. 6. P.V.SANKARAN, C/O.JUNJULAKSHMI, - OPP. GOVERNMENT HIGH SCHOOL CHAVAKKAD. ADV. SRI.K.RAMACHANDRAN FOR R2 - SMT.R.MEERA FOR R2 SRI.S.SREEDEV FOR R2 SRI.DINESH MATHEW J.MURICKEN FOR R1 SRI.P.V.BALAKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX 1. EXT.P1 : TRUE COPY OF THE JUDGMENT IN O.S 118/75 DATED 4/8/1980 OF SUB COURT, THRISSUR. 2. EXT.P2 : TRUE COPY OF THE ORDER DATED 10/04/1981 IN O.S 118/75 OF SUB COURT, THRISSUR ACCEPTING THE SECURITY OFFERED IN TERMS OF C.M.P 17158/1980. 3. EXT.P3 : TRUE COPY OF THE DECREE IN A.S.311/1980 DATED 26/6/1986. 4. EXT.P4 : TRUE COPY OF THE FIXED DEPOSIT RECEIPT NO.1/1989 DATED 10/02/1989. 5. EXT.P5 : TRUE COPY OF THE ORDER DATED 11/2/05 IN I.A 5373/1996. 6. EXT.P6 : TRUE COPY OF THE ORDER IN I.A 3433/05 DATED 19/9/06 OF SUB COURT, THRISSUR. 7. EXT.P7 : TRUE COPY OF THE LETTER DATED 3/7/07 OF PUNJAB NATIONAL BANK TO THE PETITIONER. ## RESPONDENT'S EXHIBITS: 1. EXT.R1(a): TRUE COPY OF THE BOND EXECUTED BY VIJAYAN DATED 9/3/1981. //TRUE COPY// P.A TO JUDGE ## S.S.SATHEESACHANDRAN, J ------------------------------------W.P.(C) No.4081 OF 2008 -------------------------------Dated this the 24[th] day of March 2010 ## JUDGMENT The writ petition is filed by a surety who tendered a fixed deposit receipt before the court as security to honour the claim awarded to the decree holders as mesne profits in a decree passed in a suit for recovery of possession. When an appeal was taken by the defeated defendant and an application for stay of execution of the decree allowing recovery of possession with mesne profits applied for a conditional order was passed directing deposit of one fourth of the amount due towards mesne profits and the rest by furnishing security. Pursuant to such order, one fourth of the amount was deposited by the defendant/appellant, and two sureties on his behalf furnished security bonds. One of them is the present revision petitioner who had furnished his landed property, initially, as security. Later, the revision petitioner substituted the security offered tendering a Fixed Deposit Receipt for a sum of Rs.58,776/which after the period fixed has maturity value of Rs.1,18,792. The appeal was later dismissed by this court. Ext.P3 is the decree passed by the appellate court confirming the decree of the trial court. Pursuant to Ext.P3 decree, the revision petitioner/surety applied for releasing the security covered by the Fixed Deposit Receipt praying for adjustment of whatever amount due to the decree holders Page numbers W.P.(C) No.4081 OF 2008 towards the claim of mesne profits and releasing the balance amount due to him. That application was objected to by the decree holders and after hearing both sides, it was dismissed. The order dismissing that application was challenged in C.R.P No. 550 of 2000 by the present revision petitioner and this court by order dated 19.02.2003 set aside the dismissal order and remitted the case for disposal afresh in accordance with law. Pursuant to such remission, after hearing both sides, the court below dismissed the application again vide Ext.P5 order upholding the objection raised by the decree holders. Revision petitioner moved an application for review of Ext.P5 order but that too was dismissed. Writ petition has been filed challenging the propriety and correctness of Ext.P5 and Ext.P6 orders invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel appearing for the revision petitioner inviting my attention to Ext.P7 communication received from the bank turning down his request to convert the status of his NRE account submitted that in the light of the orders passed by the court declining his genuine request seeking for adjustment and payment of whatever amount due under the security furnished by him as due to the decree holders and releasing the balance amount to him, he is now faced with the predicament of prosecutional proceedings forretaining an N.R.E account years after Page numbers W.P.(C) No.4081 OF 2008 his return from a Gulf country. On merits also, the learned counsel submitted that Ext.P5 and P6 orders passed by the court cannot be sustained as the decree holders can claim only the amount what is due to them under the decree. As a surety the revision petitioner who had offered security for satisfaction of the decree amount need only discharge the liability due from the judgment debtor under the decree and nothing more, submits the counsel. The amount under deposit now exceeds more than three lakhs in view of renewals made from time to time and it is more than sufficient to satisfy the claim of the decree holders, according to the counsel. It is further submitted, after delivery of possession in execution of the decree, the execution petition had been closed, but, now a petition is pending for reopening of the execution proceeding at the instance of the decree holders contending that the claim of mesne profits has not been settled so far. In that application on the request made by the decree holders, it is submitted, the amount under deposit in the bank had been brought to the court and redeposited under court deposit and thereby he is deprived of the interest which is legally due to him. The learned counsel therefore urges that the court below be directed to quantify what is the amount legally due to the decree holders under the decree towards the claim of mesne profits and adjusting that amount in the security furnished and release the balance amount to the surety/revision petitioner. On the other hand, the learned counsel Page numbers W.P.(C) No.4081 OF 2008 appearing for the decree holders submitted that even after dismissal of the appeal, there were further proceedings before the apex court in view of a special leave petition moved by the defendant and such proceedings continued till 1996. So much so, according to the counsel, the effective date for quantifying the claim of mesne profits has to be taken from three years from the date of disposal of the proceedings before the apex court. It is further submitted, there is also an objection from the side of the decree holders that there is impersonation in moving the present application as serious discrepancy is noted with reference to the name of the person shown in the security bond and also in the present application. That question also has to be resolved, according to the counsel, before any order is passed for releasing any sum offered as security in the proceedings to the present revision petitioner. The challenge raised against Exts.P5 and P6 are highly belated and so much so, the writ petition in effect is not entertainable is the further submission of the learned counsel for the decree holders. 3. I have considered the rival submissions made by the counsel on both sides. Though I find some force in the submission made by the learned counsel for the decree holders that the writ petition moved challenging Exts.P5 and P6 orders are highly belated, having regard to the fact that the court below despite setting aside of its previous order and remitting the case for disposal afresh has not Page numbers W.P.(C) No.4081 OF 2008 applied its mind in passing Ext.P5 order and, further retaining such order is likely to cause miscarriage of justice, I find, the supervisory jurisdiction vested with this court has to be invoked to advance the ends of justice. In that view of the matter, I find that appropriate directions have to be issued to the court below in disposing of the petition moved by the surety seeking the amount which is legally due to him after adjusting the claim of mesne profits towards which he had furnished Fixed Deposit Receipt as security. So far as the objection raised as to the identity of the person who had moved the application before the court below, I find, it can be easily resolved insisting for production of relevant materials proving his status. Even the bank can also be directed to produce relevant records if serious doubt arise with respect to the status of the person. Observations made by me as above should not be taken as insisting for production of documents from the bank to prove the identity of the surety who has filed the petition. It is for the court below to decide on the materials produced as to whether there is any impersonation by the party who has filed the application for release of the security with reference to the quantification to be made from the amount furnished as security there cannot be any dispute between the parties as it has to be done in accordance with the settled principles of law applicable. The apex court in **“Lucy Kochuvareed v P Mariappa Gounder and Others” (AIR 1979 SC 1214)** has laid down the principles Page numbers W.P.(C) No.4081 OF 2008 applicable in the matter of quantification of mesne profits in determining three years period from the date of the decree. I am not expressing any opinion whether three years period has to be calculated with reference to Ext.P3 decree passed by this court in appeal or from the termination of the proceedings by the apex court. But, however, it has to be pointed out that the termination of the proceedings by the apex court can be taken into account only if a decree had been passed by the apex court giving rise to merger of that decree with the one passed by that court. Otherwise the decree holders would be entitled to claim mesne profits only for three years from the date of Ext.P3 decree. Having regard to the fact that the petition moved by the surety is pending for so much period of time, I direct the court below to dispose the petition as early as possible at any rate on or before 30[th] June 2010 taking note of the observations made above and in accordance with law. Writ petition is disposed as indicated above. Sd/S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv