SARADA RAJAGOPALAN Vs. SUB COLLECTOR

JUDGEMENT

(1.) THE Civil Revision Petitioners/petitioners 2 to 9/claimants 3 to 5 and 7 to 10 have has filed this Civil Revision Petition against the order dated 01. 12. 2005 made in E. P. No. 32 of 2003 in L. A. O. P. No. 99 of 1988 passed by the learned Sub Ordinate Judge, Udumalpet, in dismissing the Execution Petition filed by the petitioners under Order 21 Rule 11 (2) of C. P. C.

(2.) THE Executing Court while passing orders in E. P. No. 32 of 2003 on the file of the learned Subordinate Judge, Udumalpet has inter alia observed that the amounts have been deducted and interest has not been calculated and for the original amount of Rs. 17,41,214/- every time the interest has been prayed for and added and moreover, there is a difference between the amount shown in the Calculation memo and the amount mentioned in the Execution Petition and resultantly, the Memo of Calculation filed on the side of Revision petitioners/petitioners is a wrong one and that the Execution petition is not to be accepted and consequently, dismissed it without costs.

(3.) THE learned counsel for Revision petitioners/petitioners submits that the Executing Court has not taken into account of the fact that in the Memo of Calculation filed by the first respondent along with the counter statement in E. P. No. 32 of 2003, no interest has been calculated on solatium and on additional market value and further that the first respondent, based on his Memo calculation has stated in his counter statement that the entire amount has been paid and also that an Executing court has committed an error in ignoring the important fact that no interest has been paid by the respondents on solatium and the petitioners are entitled to claim interest on the excess compensation, solatium etc. in view of the decision of the Hon'ble Supreme Court in Sunder Vs Union of India reported in 2002 (2) L. W 39 and also in view of the direction given by this court in its Judgment dated 12. 07. 2001 in A. S. No. 1101 of 1993 and added further that as per Section 53 of the Land Acquisition Act, the provisions of Civil Procedure Code is applicable to the proceedings before the Court concerned and as per Section 26 (2) of the Land Acquisition Act, the award passed in L. A. O. P. is a money decree and under Order 21 Rule (1) and (2) of C. P. C how the apportionment is to be made has been set out and in the case of a debt due with interest, the normal rule is that any payment made in the first instance is applied towards the satisfaction of interest and thereafter tot he principal and there are no arrears in the calculation of memo filed on the side of the petitioners and in any event, instead of directing the parties to file a fresh memo of calculation, the Executing Court has committed an error in dismissing the Execution Petition without any reason therefrom and in as much as the impugned order of the Executing Court in E. P. No. 32 of 2003 dated 01. 12. 200t is against law and facts, the same needs to be set aside by this Court in the interest of justice by means of allowing the present Civil Revision Petition.