Sanjay Kishan Kaul, J. (Oral)

1. The petitioner filed an execution petition in respect of a decree passed by the Subordinate Judge, Kochi in O.S. No. 90/93. The decree was for the principal amount of Rs. 22,89,900/- along with interest at the rate of 18 per cent per annum from the date of institution of suit till date of realisation. The Judgment debtor filed an appeal against the decree before the High Court of Kerala and interim orders were granted in favour of the judgment debtor subject to deposit of the amount of Rs. 5lakh before this court. It may be noticed at this stage that the judgment debtor had obtained transfer of the decree for enforcement to this court. This amount of Rs 5 lakh was released in favour of the decree holder on 15.04.1996.

2. The appeal of the judgment debtor was partly allowed in terms of the judgment in appeal dated 01.11.2000 and the decree was modified. The decree holder was held entitled to a sum of Rs. 9,24,666/- instead of Rs. 22,89,900/-. The decree holder was granted interest at the rate of 18 per cent per annum from the date of institution of suit till date of realisation as granted by the Trial Court. A further direction was passed that the amount of Rs. 5 lakh paid during the pendency of the appeal be adjusted while recovering the balance amount.

3. The decree holder filed EA No. 363/2001 in view of the decree passed by the High Court. In para 5 of the application the decree holder set out the amounts which were liable to be recovered from the judgment debtor and the said para 5 is as under:

"That as per the modified decree passed by the High Court, the decree , holder is entitled to recover from the judgment debtor the following amount:

Principal amount due as per the Rs. 9,24,666-00

Modified decree

Interest for the same @ 18% from Rs. 4,99,319-64

12-3-1993 to 4-3-1996

Rs. 14,23,985-64

Less amount remitted on 4-3-96 Rs. 5,00,000-00

Balance amount due Rs. 9,23,985-64

Interest for Rs. 4,24,666/-

(Rs. 9,24,666 – Rs. 5,00,000) @ 18% Rs. 4,14,450-75

from 5-3-1996 to 5-8-2001

Total Rs. 13,38,436-39

4. A reading of the aforesaid para 5 shows that the amount of Rs 5lakh was adjusted as on the date when it was remitted. However while calculating interest the decree holder itself made the calculation on the basis as if the sum of Rs. 5lakh was liable to adjusted against the principal and accordingly calculated interest from 5-3-.1996 till date of filing of the application on only Rs. 4,24,666/- and not on Rs. 9,23,985.64. On notice beings issued on the application, the judgment debtor moved EA No. 507/2001 seeking to pay the decretal amount in instalments. The judgment debtor states that he could not pay the decretal amount of Rs. 13,38,436.39 in lump sum but was willing to pay Rs. 2,38,440/- in the first week of December, 2001 and the remaining decretal amount in monthly instalments of Rs. 1,00,000/- each.

5. The application was considered on 07.11.2001 by this court and in the presence of both the counsels for the decree holder and judgment debtor, the EA was disposed of in terms of the prayer made by the judgment debtor. The execution petition was re-notified for payment of the amount in terms thereof.

6. The next date of hearing was fixed as 03.12.2001 when the judgment debtor handed over the cheque of Rs. 2,38,440/- as prayed for in EA No. 507/2001 and the petition was again re-notified on 05.03.2002 for payment of remaining instalments "as per the application of the judgment debtor". On 05.03.2002, the court noted that the judgment debtor had paid further three instlaments.

7. The judgment debtor at that stage moved EA No. 205/2002 seeking leave to negotiate the sale of immoveable property bearing No. B-410, Ansal Chambers-1, 3, Bhikaji Cama Place, New Delhi which had remained as security for satisfaction of the decree in the present case. In view of the payments made by the judgment debtor, the application was allowed on 24.04.2002. On 22.07.2002, another cheq