The Government of Goa and Another vs Ivo Agnelo Santimano Fernandes and 5 Ors.

R.C. Chavan, J.—This petition by the State is directed against the order passed by the learned District and Session Judge, South Goa on 8.8.2007 allowing amendment to Execution Application No. 3/1998, whereby the Decree Holder sought to add the amount of interest on solatium, which was inadvertently left out. This amendment was sought after an order dated 18.8.2000 passed by the Executing Court, which had been challenged in Revision Application No. 44/2000 before this Court, which was disposed of by judgment dated 16.8.2002, whereby this Court had allowed revision and quashed and set aside the order dated 18.8.2000 passed by the Executing Court. The claimants have challenged the order of this Court in SLP before the Supreme Court which is pending. During the pendency of these proceedings, amendment was sought. The learned District Judge allowed the application for amendment. Aggrieved thereby, the State is before this Court. The learned Govt. Advocate Shri Rivonkar is relying on judgment in the case of Gurpreet Singh Vs. Union of India (UOI), in support of his contention that interest on solatium could not be claimed if the execution itself is not pending. It may bee useful to reproduce here the observations of the Apex Court in paragraph 54 of the judgment as under:

One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in courts all over the country, we permitted the counsel to address us on that question. That question is whether in the light of the decision in Sunder, the awardee/decree-holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder(19.9.2001) and not for any prior period. We also clarify that this will not entail any reappropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India a view to avoid multiplicity of litigation on this question.

The learned Government Advocate also made available for my perusal the award by the District Judge, which shows that the learned District Judge had in fact awarded interest on solatium as well, as may be seen from the operative order of the District Judge which reads as under:

In respect to plot of 440 sq. mts. Allegedly sold by the petitioners to one Sambhari, it will be for the petitioners and Sambhari to settle the matter out of this Court since the area of the same plot is not the subject matter in the present reference. Accordingly, the respondents shall pay to the petitioners compensation for the acquired land based on a rate of Rs. 45/-per Sq.mt. Fixed by the L.A.O. Plus value of the trees, as assessed by the L.A.O.. To the said value shall be added solatium at the rate of 30 % and additional compensation of 12 % in terms of Section 23(1-A) of the Act, from the date of publication of Notification u/s 4 till the date of the award of the L.A.O. Or till the date of taking possession of the land, whichever is earlier.

To this total amount shall be added severance charges at 20 % of the said rate of Rs. 45/-per Sq.mt. For the non acquired portions in survey nos. 111/1 and 111/2 showed in blue pencil in the plan of Exh.10 with an area of 37,731 sq.mts. The respondents do pay to the petitioners the total compensation so assessed loss the amount already paid accrued with interest at the rate of 9 % for the first year from the date of taking possession of the land and at the rate of 15 % p.a. for the subsequent period till final payment.

It may be seen that in paragraph 54 of the judgment in Gurpreet Singh''s case, the Apex Court held that if the award of the Reference Court shows that interest on solatium awarded, it would be open to the Executing Court to apply the ratio in the case of Sunder Vs. Union of India, and interest on that amount can also be directed to be deposited in Execution Proceedings. Therefore, since the interest had already been awarded by the learned District Judge in his award, the D.H. was entitled to claim it in terms of paragraph 54 of the judgment. The only dispute is about pendency of the execution proceeding. According to the learned Government Advocate it cannot be said the execution proceedings are pending merely because of SLP is filed before the Supreme Court challenging orders of this Court. This does not appear to be correct. It is not shown that the decree is fully satisfied and, therefore, it cannot be said that execution is not pending before the District Court. In this view of the matter, the order passed by the learned District Judge, cannot be faulted and does not call for any interference in exercise of jurisdiction under Article 226 or 227 of the Constitution of India. The petition is dismissed.