M.K. Vimala v. Tahsildar (R.R), Thalassery and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** ## **FAO.NO. 234 OF 2011 ( )** **---------------------------------JUDGMENT IN AS NO.77 OF 2006, DISTRICT COURT, THALASSERY O.S. NO.131 OF 2002, MUNSIFF'S COURT, KUTHUPARAMBA** ## **APPELLANT-RESPONDENT NO.2/DEFENDANT NO.5:** **--------------------------------------------------------------------------** ## **M.K.VIMALA,W/O.VASUDEVAN,AGED 52 YEARS, RESIDING AT KOZHIPURATH HOUSE, VILAMANA, P.O PERINKARI, THALASSERI TALUK, KANNUR DISTRICT.** ## **BY ADV. SRI.R.SURENDRAN** **RESPONDENT(S)/APPELLANTS & RESPONDENT NO.1/ DEFENDANTS NO.1 TO 4 & PLAINTIFF:** **----------------------------------------------------------------------------------** ## **1. THE TAHSILDAR (R.R),THALASSERY** - **670 101.** **2. THE REVENUE DIVISIONAL OFFICER, THALASSERY, 670 101.** ## **3. THE DISTRICT COLLECTOR,KANNUR** - **670 001.** ## **4. THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KANNUR 670 001.** ## **5. N.V.MADHUSOODANAN,S/O.GOPALAN NAMBIAR,** - **AGED 42, MATTINI, P.O KALITHATTU VILAMANA, THALASSERY TALUK, KANNUR DISTRICT.** **BY GOVERNMENT PLEADER SHRI M.A. ABDUL SHUKOOR R1 TO R4 R,R-5 BY ADV. SRI.K.P.HAREENDRAN** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== F.A.O. No.234 of 2011 ==================================== Dated this the 20[th] day of June, 2013** ## **J U D G M E N T** This appeal arises from the judgment and decree dated 10.03.2011 in A.S. No.77 of 2006 of the District Court, Thalassery. 2. The 5[th] respondent filed O.S. No.131 of 2002 in the Munsiff's Court, Kuthuparamba against respondents 1 to 4/defendants 1 to 4 and the appellant for a decree for mandatory injunction directing respondents 1 to 4 to issue sale certificate to the 5[th] respondent in respect of the property referred to in the suit or in the alternative, for a direction to return the amount deposited by the 5[th] respondent with the revenue recovery officer and `6000/- deposited with the said Officer as stamp duty together with interest at the rate of 15% per annum. According to the 5[th] respondent, property of the appellant (impleaded in the suit as additional 5[th] defendant) was sold in auction in revenue recovery proceedings to discharge her liability towards certain banks. That property was purchased by the 5[th] respondent. Neither did he get a sale certificate nor was the amount deposited returned to him. **F.A.O. No.234 of 2011** -: 2 :- 3. Respondents 1 to 4 contended, inter alia, that they are not in a position to issue sale certificate or deliver property to the 5[th] respondent in view of the ex parte decree the appellant has obtained against them in O.S. No.135 of 1997. 4. The appellant contended that the sale is not valid and that the 5[th] respondent is not entitled to the reliefs. 5. The trial court refused to grant a decree for mandatory injunction prayed by the 5[th] respondent for the reason that respondents 1 to 4 are bound by the ex parte decree in O.S. No.135 of 1997 but allowed the 5[th] respondent to recover Rs.66,000/- with interest at the rate of 15% per annum from the date of suit till realization from respondents 1 to 4. 6. Respondents 1 to 4 challenged that judgment and decree before the learned District Judge, Thalassery in A.S. No.77 of 2006. The 5[th] respondent neither preferred a cross appeal nor a separate appeal challenging that part of the judgment and decree refusing mandatory injunction. 7. In the meantime, respondents 1 to 4 filed application in O.S. No.135 of 1997 to set aside the ex parete decree against them. That application was dismissed against which respondents 1 to 4 filed C.M.A. No.46 of 2006 which also came up before the **F.A.O. No.234 of 2011** -: 3 :- learned District Judge, Thalassery for hearing. 8. The learned District Judge, disposed of C.M.A. No.46 of 2006 and A.S. No.77 of 2006. The C.M. Appeal was allowed and the ex parte decree against respondents 1 to 4 in O.S. No.135 of 1997 was set aside. So far as A.S. No.77 of 2006 is concerned, learned District Judge noticed in paragraph 9 of the judgment that the 5[th] respondent is satisfied with the amount deposited by him with interest. Learned District Judge, allowed A.S. 77 of 2006 setting aside the judgment and decree of the trial court in O.S. No.131 of 2002 as a whole and remitted the suit for fresh decision by the learned Munsiff (also taking into account the fact of allowing C.M.A. No.46 of 2006). The judgment of the learned District Judge remanding the suit is under challenge at the instance of the appellant-5[th] defendant in the suit. 9. The learned counsel for the appellant has contended that there was no occasion or necessity for setting aside judgment and decree of the trial court as a whole in so far as the 5[th] respondent who should be aggrieved by the refusal to grant decree for mandatory injunction had not preferred either a separate appeal or a cross appeal. The learned counsel submitted that in the circumstances learned District Judge should **F.A.O. No.234 of 2011** ## -: 4 :- have considered only the correctness of the decree allowing the 5[th] respondent to recover the amount from respondents 1 to 4. The learned counsel also submitted that since the appellant is admittedly in possession and enjoyment of the property and no sale certificate has so far issued to the 5[th] respondent, the appellant is prepared to repay the entire amount due to the 5[th] respondent. The appellant has no objection in respondents 1 to 4 being exonerated from that liability. Grievance of the appellant is only concerning the rate of interest the trial court has awarded. That according to the learned counsel is not supported by any contract or statutory provision. Learned counsel submitted that even the bank rate of interest can only be upto 12%. Learned counsel submitted that if such a decree is passed, the appellant will not pursue her claim in O.S. No.135 of 1997 which is now reopened as per judgment in C.M.A. No.46 of 2006. 10. The learned Government Pleader requested that respondents 1 to 4 may be exonerated from liability to pay the amount to the 5[th] respondent. 11. In response learned counsel for the appellant submitted that if after discharge of the liability of the appellant towards the banks any excess amount is in the custody of **F.A.O. No.234 of 2011** ## -: 5 :- respondents 1 to 4, the appellant is entitled to get that amount. 12. It is seen from paragraph 9 of the judgment under challenge that the 5[th] respondent is satisfied with the amount he has deposited with the sale Officer and the value of the stamp paper with interest. 13. True that under Rule 33 of Order XLI of the Code of Civil Procedure (for short, “the Code”) the appellate court has the power to pass any decree and make any order which ought to have been passed or made by the trial court and to pass or make such further or other decree or order and that power may be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. 14. In the present case, the 5[th] respondent is not aggrieved by the judgment and decree of the trial court refusing to grant decree for mandatory injunction and allowing him to recover the amount deposited with the sale Officer. Rule 33 of Order XLI of the Code is to be read along with Rule 4 of Order XLI. The provision is intended to save situation where in **F.A.O. No.234 of 2011** -: 6 :- order to grant relief in favour of the appellant it becomes necessary to interfere with the decision of the trial court which was not appealed against and it is necessary to pass decree or order to avoid contrary and inconsistent decisions on the same question. Rule 33 of Order XLI of the Code empowers the appellate court to pass such decrees or make such orders as the trial court could pass or make to avoid inconsistency or inequality in reliefs granted to similarly placed parties and avoid unworkable decree or order coming into existence. Power under Rule 33 is not to be exercised to unsettle decrees which have been left behind untouched and which a party by not appealing has permitted to become final. Rule 33 is not a provision intended to circumvent the failure of a respondent in not filing an appeal or cross objection to challenge that part of the decree which went against him (See _**Thuravoor Grama Panchayat v. Peter Jerry and Others**_ - 2012 [2] KHC 405). 15. Here the decree of the trial court is not in any way inconsistent. The 5[th] respondent prayed for a decree for mandatory injunction or in the alternative, prayed for return of the amount he deposited with respondents 1 to 4. The 5[th] respondent as is evident from the fact that he did not prefer an **F.A.O. No.234 of 2011** ## -: 7 :- appeal or cross objection is satisfied with the decree for return of the amount deposited with respondents 1 to 4. In that situation it was not necessary for the learned District Judge to have interfered with the decree disallowing mandatory injunction to the 5[th] respondent. To that extent the judgment and decree of the learned District Judge in A.S. No.77 of 2006 cannot be sustained. 16. I referred to the observations learned District Judge has made in paragraph 9 of the judgment. Learned counsel for the appellant has asserted that the appellant is prepared to pay the amount due to the 5[th] respondent. The request is only that the rate of interest fixed by the trial court be modified. 17. Having heard the learned counsel I am inclined to think that the controversy can be ended by directing the appellant to pay the amount payable to the 5[th] respondent and giving a charge for the said amount over the property in question. 18. So far as the rate of interest awarded by the trial court is concerned, it is seen that 15% is allowed by way of interest from the date of suit till date of recovery. May be in the nature of the claim made by the 5[th] respondent, Sec.34 of the Code has no application as the claim is in the nature of recovery of amount **F.A.O. No.234 of 2011** ## -: 8 :- deposited with interest by way of damages. But even then the interest awarded must be reasonable. Having regard to the bank rate I am inclined to think that interest at the rate of 12% from the date of suit till recovery is sufficient. 19. In case respondents 1 to 4 are in custody of any excess amount (after discharging liability of the appellant towards the banks and defraying the expenses incurred in connection with the sale of the property, it is open to the appellant to take steps to recover the said excess amount from respondents 1 to 4 if otherwise the appellant is entitled to do so. 20. Submission of the learned counsel that in view of the decision this Court has taken, the appellant will not pursue O.S. No.135 of 1997 and take steps to close that suit is recorded. 21. Since the whole matter is being disposed of and this Court has passed a judgment which the trial court had to pass, a decree shall be drawn up in terms of this judgment. Resultantly the appeal is allowed in part as under: (i) Judgment of the learned District Judge, Thalassery in A.S. No.77 of 2006 is set aside. (ii) Judgment and decree of the learned Munsiff, Kuthuparamba in O.S. No.131 of 2002 is modified as under: ## **F.A.O. No.234 of 2011** -: 9 :- (a) The 5[th] respondent-plaintiff is allowed to recover `66,000/- (Rupees Sixty six thousand only) with interest at the rate of 12% per annum from the date of suit till recovery from the appellant and by sale of the suit property. (b) The suit property is made a charge for recovery of the said amount. (c) Respondents 1 to 4 are exonerated from liability to pay the amount. - (d) Parties are directed to suffer their costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv