Kerala High Court
S.S.Viji vs Sudheesh on 25 March, 2025
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RFA NO. 163 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
RFA NO. 163 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 04.01.2018
IN OS NO.329 OF 2009 OF SUB COURT, ATTINGAL
APPELLANT/DEFENDANT:
S.S.VIJI
AGED 43 YEARS
D/O. SARASWATHY, RESIDING AT S.S.BHAVAN,
AZHOOR, CHIRAYINKEEZHU,
NOW RESIDING AT VAYALIL VEEDU,
CHIRAYINKEEZHU, ANATHALAVATTOM P.0. ,
THIRUVANANTHAPURAM DISTRICT., PIN - 695306
BY ADVS.
M.BALAGOVINDAN
S.SHIBU KUMAR
LAL KUMAR N.
RESPONDENT/PLAINTIFF:
SUDHEESH
AGED 59 YEARS
S/O. DIVAKARAN, NALINI MANDIRAM, AZHOOR,
SARKARA VILLAGE, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM., PIN - 695304
BY ADV JAYAKUMAR J
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS
ON 25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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RFA NO. 163 OF 2023
2
JUDGMENT
Dated this the 25th day of March, 2025
The defendant in O.S.No.329/2009 on the files of the
Sub Court, Attingal has filed this regular first appeal under
Section 96 read with Order XLI Rule 1 of the Code of Civil
Procedure, practically to adjust payment made by him on
three occasions towards the decree debt in terms of the
decree.
2. Heard the learned counsel for the
appellant/defendant and the learned counsel for the
respondent/plaintiff.
3. I shall refer the parties in this appeal with
reference to their status before the trial court, hereinafter for
easy reference.
4. In this matter, once the suit was remanded
back and thereafter the following reliefs were granted.
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"1. The defendant do pay a sum of
Rs.25,000/- (Rupees Twenty-Five Thousand only) to
the plaintiff together with a simple interest at the rate
of 9% per annum from 24.12.2008 to the date of
decree and thereafter @6% per annum to the date of
realization of that amount.
2. The defendant do pay a sum of
Rs.50,000/- (Rupees Fifty Thousand only) to the
plaintiff together with a simple interest at the rate of
6% per annum from the date of suit till realization of
that amount. Both amount of compensation and
refund of advance sale consideration stands charged
upon the plaint schedule property.
3. The plaintiff is entitled to recover
proportionate costs from the defendant and assets."
5. Thereafter, I.A. No.762/2018, along with
I.A.No.762/2018, filed under Order 47 Rule 1 read with
Section 114 of CPC by the defendant was allowed by the trial
court as per common order dated 28.06.2019 and as per
judgment dated 14.06.2022 in FAO No.51/2022, this Court
set aside the said order, with liberty to the appellant to file
appeal. Thereafter, the defendant filed I.A.No.174/2022
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RFA NO. 163 OF 2023
under Section 152 of the CPC to correct the decree in the
above suit and the same also is dismissed as per order dated
05.04.2023.
6. The learned counsel for the
appellant/defendant submitted that before remand of this
matter as on 22.01.2014, an amount of Rs.45,260/- (Rupees
forty five thousand two hundred and sixty only) was deposited
and the same is still in the custody of the court. In this
connection, the learned Civil Judge, Sub Court, Attingal,
reported on 17.02.2025 that such amount was deposited.
Apart from that, according to the defendant, as on 30.11.2019
Rs.97,726/- (Rupees ninety seven thousand seven hundred
and twenty six only) was deposited in E.P.No.15/2018 as part
of decree debt, as per Annexure E Treasury Savings Bank
pay-in-slip. Again, on 13.06.2021, Rs.224/- (Rupees two
hundred and twenty four only) also deposited towards the
balance amount in E.P.No.15/2018 as per Annexure D
Treasury Savings Bank pay-in-slip. So the contention raised
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RFA NO. 163 OF 2023
by the defendant is that the entire decree amount has been
satisfied and the same may be adjusted accordingly by
allowing the appeal.
7. The learned counsel for the defendant
placed statement of accounts filed by Adv.J.Jayakumar, for
and on behalf of the decree holder/plaintiff, in this case,
showing the balance as on 06.01.2020 as Rs.97,910/-
(Rupees ninety seven thousand nine hundred and ten only).
The calculation is is as under:
Rs.
1. Principal amount as per the decree 25,000/-
Interest from 24/12/2008 to 04/01/2018 (9%)
(Till the date of decree) 20,325/-
Interest from 05/01/2018 to 04/12/2019 (6%)
(Till the date of deposit) 2,875/-
Total (a) 48,200/-
========
2. Compensatory cost as per the decree 50,000/-
Interest from 24/12/2008 to 04/12/2019 (6%) 32,840/-
Total (b) 82,840/-
========
3. Court Fees (c) 12,130/-
Grand Total (a+b+c) 1,43,170/-
Less:- Amount deposited on 22/01/2014 45,260/-
Balance Amount 97,910/-
=======
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8. Now the defendant deposited Rs.1,43,210/-.
In this matter, the defendant, in fact, has not raised any
challenge against the decree and judgment and he wants to
rectify the proportionate cost wrongfully included in the
decree and the payment towards the decree debt, in
accordance with law. Having addressed the matter in issue,
in the interest of justice, it is ordered that for the said purpose
of calculating cost in terms of decree Rs.5,900/- to be
considered as court fee and Rs.6,150/- to be considered as
advocate fee and the cost statement incorporated in the
decree is corrected accordingly, since the said relief granted
to the appellant by the trial court in the review petition has
been set aside by this Court as per judgment in FAO
No.51/2022, even though proportionate cost alone is granted
by the decree. In fact, on getting statements from both sides,
the execution court has to consider whether the decree debt
in full including the proportionate cost as stated above has
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RFA NO. 163 OF 2023
been discharged by the defendant/judgment debtor. In the
said circumstances, nothing more survives in this appeal to
be adjudicated.
9. In view of the matter, this appeal stands
allowed in part with direction to the execution court to
consider the amount due in terms of the decree and to adjust
the payments described above towards the decree debt. The
execution court is at liberty to direct deposit of any amount as
per the decree due from the defendant/judgment debtor. At
the same time, the execution court shall order return of any
amount paid in excess by the defendant/judgment debtor.
Both parties are at liberty to file petition in the execution
petition in this regard.
All interlocutory orders stand vacated and all
interlocutory applications pending in this regular first appeal
stand dismissed.
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Registry is directed to forward a copy of this
judgment to the jurisdictional court for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
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RFA NO. 163 OF 2023
PETITIONER ANNEXURES
Annexure A TRUE COPY OF THE COMMON ORDER IN I.A.
761/2018 AND REVIEW IN I.A. 762/2018
IN O.S. 329/2009 BEFORE THE SUB COURT,
ATTINGAL DATED 28/06/2019
Annexure B TRUE COPY OF THE JUDGMENT IN F.A.O
51/2022 OF THE HON'BLE HIGH COURT OF
KERALA DATED 14 . 06 . 2022.
Annexure C TRUE COPY OF THE ORDER IA 174/2022 IN
OS.329/2009 OF THE SUB COURT ATTINGAL
DATED: 05/04/2023.
Annexure D CERTIFIED COPY OF THE RECEIPT SB
NO.799011900000055 IN PAY IN SLIP SUB
TREASURY, ATTINGAL DATED 13.1.2021.
Annexure E CERTIFIED COPY OF THE RECEIPT SB NO.
799011900000055 IN PAY IN SLIP SUB
TREASURY, ATTINGAL DATED 30.11. 2019
RESPONDENT ANNEXURES
Annexure R1(a) CERTIFIED COPY OF ORDER DATED 5/4/2023
IN I.A. NO. 174/2022 IN O.S. NO.
329/2009 OF SUB COURT ATTINGAL
