S. Manivizhi vs Karthik Homes

S. Rajeswaran, J.—The defendant in O.S. No. 3192/2006 is the revision petitioner before this Court. The respondent herein is the plaintiff in the suit. The parties herein are referred to as per their rankings in the suit, for the sake of convenience.

In a suit for recovery of money filed by the plaintiff against the defendant for a sum of Rs. 3,76,990/- with interest, the suit was decreed was on 17.02.2009 by the XIIth Assistant City Civil Judge, Chennai. As against the judgment and decree dated 17.02.2009 made in O.S. No. 3192/2006 the defendant preferred a First Appeal ion A.S. No. 206/2009, before the 7th Additional City Civil Judge, Chennai. After contest, the appeal was allowed and the judgment and decree passed by the trial court in O.S. No. 3192/2006 dated 17.02.2009 was set aside. The First Appellate Court further directed the plaintiff/respondent in the first appeal to pay a sum of Rs. 72,270/- towards the cost of appeal to the defendant/appellant in the appeal. For the cost of Rs. 72,270/- as awarded by the Appellate Court, the defendant as the Decree-holder, filed an Execution Petition in E.P. No. 2866/2010 against the plaintiff. This execution petition was opposed by the plaintiff/judgment debtor by filing a counter. But the trial court dismissed that application. Aggrieved over the same, the above revision has been filed by the decree holder/the appellant in the first appeal.

I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. I have also gone through the documents available on record.

The primary contention of the learned counsel for the petitioner is that, filing an execution petition for the cost awarded is a substantive right and the right emanates from the order of the court which passed the award of cost. Therefore, the execution court ought to have allowed the execution petition to enable the petitioner who filed the execution petition to enjoy the fruits of the award of cost. But, the said execution petition filed by the decree holder/the appellant in the first appeal for the award of cost was opposed by the judgment debtor on the ground that as against the judgment and decree of the first appellate court made in A.S. No. 206/2009, second appeal in S.A. No. 1367/2010 has been filed before this Court and by the order dated 20.11.2010, this Court in M.P. No. 1/2010 granted stay of the operation of the judgment and decree made in A.S. No. 206/2009. Therefore, according to the judgment debtor, when the judgment and decree made in A.S. No. 206/2009 has been stayed by this Court, filing an execution petition for the award of cost alone is unsustainable both in law and on facts. In consideration of that objection, the trial court also dismissed the execution petition.

Whereas, a perusal of the records show that on 10.11.2010 in M.P. No. 1/2010 in S.A. No. 1367/2010 filed by the respondent/plaintiff in the second appeal, this Court granted stay of the findings of the first appellate court in the first appeal only until further orders. This order was further modified on 22.12.2010 by this Court on the ground that the amount of Rs. 4 lakhs deposited by the respondent/defendant into the trial court was lying in waste and as the unpaid sale consideration was quantified by the plaintiff at Rs. 2,30,375/- and leaving that amount to remain in the City Civil Court deposit, the remaining out of Rs. 4 lakhs was directed to be returned to the respondent/defendant. The trial court was furthermore directed to invest the sum of Rs. 2,30,375/- in an interest bearing fixed deposit in a nationalized bank pending disposal of the litigation. With that direction, the M.P. No. 1/2010 was closed. Here again, I find that there was no stay of the cost awarded by the trial court by this Court It is needless to add that the award of cost is an incidence of the decree and it is the discretion which cannot be ignored by the execution court. Further, when there is no order of stay as to the award of cost granted by this being the appellate court, there is no reason why the execution court should hold back the execution. It is a trite law that unless the award of cost itself is challenged on payment of a separate court fee for costs and substantial question of law was raised in the Appellate Court, the Appellate Court has no power to grant stay with regard to the award of cost.

Besides that, even in the Memo of Valuation of the Second Appeal filed before this Court, I find that the value of the first appeal has been mentioned as Rs. 6,27,442/- and the Court fee paid in the first appeal was mentioned as respondents. Rs. 47,060/-. So also the value of the second appeal has been mentioned as that of the value of the first appeal which is Rs. 6,27,442/- and the Court fee paid in the second appeal was the same as Rs. 47,060/-. Admittedly, the cost awarded by the Appellate Court has not been independently challenged by paying a separate court fee. Therefore, when the award of cost has not been independently challenged by paying a separate Court fee and no order of stay has been granted by the Appellate Court also in respect of the order of cost, the contention putforth by the learned counsel appearing for the respondent before this Court has no merits and the same is liable to be rejected. The trial court disregarding these vital facts and on a thorough misconception of fact and law dismissed the execution petition, which, in my considered opinion, suffers from infirmity and illegality warranting interference. The rest of the contentions made by the learned counsel appearing for the respondents that he would pay the deficit court fee later in point of time is unsustainable in law and on fact and would not answer the point at issue in hand. In the result, the order passed by the trial court is liable to be set aside and accordingly the same order is set aside. Consequently, the Civil Revision Petition is allowed. No costs.