No. 3/27.11.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Heard Mr. P. K. Giri, the Ld. Advocate for the Revision Petitioner and Mr. P. Banerjee, the Ld. Advocate for the O.P. who vehemently oppose the prayer. 

The challenge is against the order dated 17.08.2009 passed by the Forum Kolkata, Unit – II in the Execution Case No. 134 of 2008.

It appears that the original complaint case No. 409 of 2006 was finally decided on 15.09.2008 with the following directions. :

“Hence, it is, Ordered That the application u/s. 12 of the C.P. Act, as amended till date is allowed against O.P1, 2 and 3 and ex parte against OP4.  The OPs are hereby directed to make payment to the petitioners of Mediclaim of Rs.52,930.99(Rupees fifty two thousand nine hundred thirty and ninety nine paise only) dated 30-07-2004 and Rs.16,139-72 (Ruppes sixteen thousand one hundred thirty nine and seventy two paise only) dated 27-04-2005 respectively with interest @8% p.a.(at the rate of eight per cent per annum) till the date of making payment and also directed to pay Rs.5,000/- (Rupees five thousand only) as cost of harassment and also to pay Rs.10,000/-(Rupees ten thousand only) for compensation the payment within one month from the date of communication in default he is entitled to get interest @8% p.a. (at the rate of eight per cent per annum) till the date of payment.

          The case is thus disposed of”.

At the stage of execution when the matter was being considered by the Forum it appears that by the impugned order a direction has been given to the Decree Holder to make refund of a sum of Rs. 10,980.29 to the JDR by 30.08.2009.  Being aggrieved thereby the present revision application was moved.  It appears that after the judgement was passed the JDR made payment of Rs.95,051/- to the Decree Holder by an A/c. Payee Cheque and the Decree Holder realized the said amount.

In the impugned order while a contention was considered on behalf of the JDR that said payment was made in excess of the due under the final judgement payable by the JDR to the Decree Holder, the calculation has been made by the Forum below.  After hearing both sides it appears there is some mistake in the said calculation.  By virtue of the final judgement amount payable against the first claim was Rs. 52,930.99 and the amount payable against the second claim was Rs. 16139.72.  Interest @ 8% p.a. on the aforesaid two amounts till the date of making payment also was directed apart from the direction for payment of Rs. 5,000/- towards cost of harassment and Rs. 10,000/- as compensation.  On calculation of the said amount it appears the contention of the Decree Holder is correct and the total amount paid by the JDR to the Decree Holder by A/c Payee Cheque was to the satisfaction of the entire dues under the final judgement including amounts under the two claims, interest, cost and compensation.  In the circumstances the direction for refund appears to be incorrect.  Accordingly the order dated 17.08.2009 impugned herein is modified to the extent the direction for refund of sum of Rs.10,980.29 is set aside.  Revision is allowed to the aforesaid extent.