2025:KER:25280 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: 2025:KER:25280 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. 2025:KER:25280 RFA NO. 163 OF 2023 3 “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 2025:KER:25280 RFA NO. 163 OF 2023 4 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 2025:KER:25280 RFA NO. 163 OF 2023 5 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: 1. Principal amount as per the decree Rs. 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/- ======= 2025:KER:25280 RFA NO. 163 OF 2023 6 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 2025:KER:25280 RFA NO. 163 OF 2023 7 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. 2025:KER:25280 RFA NO. 163 OF 2023 8 Registry is directed to forward a copy of this judgment to the jurisdictional court for information and compliance. Sd/- A. BADHARUDEEN JUDGE nkr 2025:KER:25280 RFA NO. 163 OF 2023 9 APPENDIX OF RFA 163/2023 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