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Judgment
C.S. Sudha, J
The petitioner is the plaintiff in O.S.No.51/2012 on the file of the Sub Court, Ottappalam and the respondent is the defendant. The suit is one for partition and for past and future mesne profits.
According to the petitioner, the parties had consented for the passing of a preliminary decree and for return of half of the court fee paid and necessary endorsements to that effect had been made by both sides on the plaint. The court below vide Ext.P5 judgment decreed the suit but did not consider the request for refund of half of the court fee paid. Therefore, the petitioner herein had moved Ext.P7 application for review. The said application for review was dismissed by Ext.P9 order which according to the petitioner is incorrect. The court below ought to have ordered refund of half of the court fee paid. As Ext.P9 order is illegal and incorrect, the same is liable to be interfered with by this Court.
Heard both sides and perused the records.
The Court below by Ext.P5 judgment passed a decree for partition and ordered the plaint scheduled property to be partitioned by metes and bounds into two equal shares and to allot one share each to the petitioner and respondent respectively. All the other matters including the right of the petitioner-plaintiff to get past and future mesne profits proportionate to his share was relegated to be decided at the final decree stage. In such circumstances, the refund of half of the court fee paid by the petitioner-plaintiff cannot be ordered as the entire reliefs sought for in the plaint has not been decided on consent. That being the position, the court below was justified in not allowing refund of half of the court fee paid as prayed for. No interference is called for. However, it is made clear that if the parties settle the matter in future, they would be entitled to claim the benefit, if the law so permits.
In the result, this Original Petition is dismissed.