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2009 DIGILAW 1118 (KER)

MATHEW PHILIP @ THANKACHAN v. K. J. EMMANUEL

2009-11-23

P.Q.BARKATH ALI

body2009
JUDGMENT : P.Q. Barkath Ali, J. 1. In this writ petition under sec.227 of the Constitution of India filed by the judgment debtor in EP 30/2006 of Munsiff Court, Pala, the writ petitioner challenges Ext.P4 order of the learned Munsiff dated February 22, 2007 holding that the execution petition is maintainable and ordering attachment of his salary in EA 205/2006 by Ext.P5 order dated February 22, 2007. 2. The facts in brief are these:- The decree-holder filed C.C. 462 of 2001 before the Judicial First Class Magistrate Court, Pala under sec.138 of the Negotiable Instruments Act against the judgment debtor/writ petitioner. It was referred to the Lok Adalath for conciliation. The Lok Adalath passed the award, Ext.P1 dated October 11, 2003. The decree-holder has filed the Execution petition before the Munsiff Court, Pala to execute that award. 3. The judgment debtor contended that the E.P. is not maintainable as there was a prior E.P. which was dismissed. PWs.1 and 2 were examined and Ext.A1 was marked on the side of the decree-holder. Thereafter the judgment debtor filed EA 14/2007 to re-open the hearing, which was allowed by the trial court wherein he has contended that as the award was passed in a criminal complaint referred to the Lok Adalath, that therefore the award of the Lok Adalath cannot be treated as a decree and that the award does not specify the amount to be realised from the judgment debtor and that therefore the EP is not maintainable. The trial court rejected the above contentions and found that the E.P. is maintainable and allowed the petition to attach the salary of the writ petitioner. 4. Arguing the writ petition, learned counsel for the petitioner submitted that the award of the Lok Adalath cannot be executed as it does not specify the amount due to the decree-holder. He also disputed the maintainability of the execution petition on the ground that Ext.P1 award cannot be treated as a decree. 5. The main point which arises for consideration is whether the award Ext.P1 can be treated as a decree and can be executed through the civil court. 6. Sec.21 of the Legal Services Authorities Act clearly provides that the award of the Lok Adalath will be deemed to be decree of a civil court. That being so, definitely it can be executed through a civil court. 6. Sec.21 of the Legal Services Authorities Act clearly provides that the award of the Lok Adalath will be deemed to be decree of a civil court. That being so, definitely it can be executed through a civil court. This position has been made clear by the Apex Court in Thomas v. Thomas Job, 2005 (3) KLT 1042 (SC). Therefore the contention of the writ petitioner that Ext.P1 award cannot be considered as a decree and cannot be executed through a civil court will not stand. 7. The next contention raised by the writ petitioner is that as the amount due to the decree-holder is not mentioned in the award Ext.P1, it cannot be executed. I am unable to agree. In Ext.P1 award it is stated thus: 05-11-2003 5000/- 5.5.2004 8. Merely because the amount due to the decree-holder is not mentioned in Ext.P1, it cannot be said that it is not an executable decree. From what is stated in Ext.P1, it is clear that the parties have settled for the amount mentioned in the cheque i.e. Rs. 70,000/- and that the amount Rs. 5000/- already paid has to be deducted. That apart, the judgment debtor did not raise such an objection either in the previous EP filed by him or till in the present EP evidence is over. Therefore the lower court is perfectly justified in holding that as per the award, the total amount was Rs. 70,000/- and after deducting Rs. 5000, the balance amount is Rs. 65,000/-. Therefore the contention of the writ petitioner that as the total amount is not mentioned in Ext.P1 and that therefore it cannot be executed has only to be rejected. For all these reasons I hold that the trial court is perfectly justified in holding that the EP is maintainable and in issuing attachment order of the salary of the judgment debtor. That being so, I find that the writ petition is devoid of any merit and it has to be dismissed. In the result, the writ petition is dismissed.