Kerala High Court
The State Bank Of Travancore vs Arayil Chathu on 29 February, 1996
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
CO.No. 26 of 2012 () IN AS.483/1996
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AGAINST THE DECREE IN O.S.No.26/1995 DATED 29.2.1996 ON THE FILE OF THE
SUB COURT, BADAGARA
&
AGAINST THE JUDGMENT IN AS 483/1996 of HIGH COURT OF KERALA DATED
03.04.1998
CROSS APPELLANT/RESPONDENT/PLAINTIFF:
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THE STATE BANK OF TRAVANCORE
KALLACHI BRANCH, REPRESENTED BY THE MANAGER
AND PRINCIPAL OFFICER, KALLACHI BRANCH,
VADAKARA TALUK.
BY ADV. SRI.K.K.JOHN
RESPONDENTS:APPELLANTS/DEFENDANTS:
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1. ARAYIL CHATHU, S/O.KANNAN,
AGED 40 YEARS, BUSINESS,
KUNNUMMAL AMSOM, VATTOLI DESOM,
VADKARA TALUK.
2. K.P.VASU, KOPPUMCHALIL
S/O.CHATHU, AGED 41 YEARS,
KAIPURATH HOUSE,
NARIPPATTA AMSOM, DESOM, VADAKARA TALUK.
R BY ADV. SRI.P.K.LAKSHMANAN
R BY ADV. SRI.RAJEEV LAKSHMANAN
THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD
ON 13-02-2017, THE COURT ON 15-02-2017 DELIVERED THE
FOLLOWING:
V.CHITAMBARESH & SATHISH NINAN, JJ.
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Cross Objection No.26 of 2012
IN A.S.No.483 of 1996
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Dated this the 15th day of February, 2017
J U D G M E N T
Chitambaresh, J.
The suit for realisation of amounts due to the plaintiff Bank from the defendants was decreed in the following terms:
"In the result, the suit is decreed directing the defendants to pay plaintiff a sum of ` 2,59,301/- with future interest at 15% per annum with quarterly interest from the date of plaint till realisation and the cost of the suit. The said amount shall be a charge on the plaint 'A' schedule property."
The Appeal Suit filed by the defendants was dismissed for non prosecution on 3.4.1998 and the memorandum of Cross Objections has now come up for final hearing.
2. The Bank points out that the court below should have also granted a decree directing the sale of the property mortgaged in default of Cross Objection No.26 of 2012 IN A.S.No.483 of 1996 2 the defendants paying the amount. The Bank contends that an equitable mortgage by deposit of title deeds had been created by the second defendant in its favour. A decree for the sale of the said property scheduled as 'A' to the plaint ought to have been granted in the wake of prayer 'b' in the plaint which is extracted below:
"for sale of the properties shown in 'A' Schedule hereunder and to apply sale proceeds towards the amount due to the plaintiff under the decree and if sale proceeds are not sufficient to proceed against the defendants personally."
It is on that premise has the Bank filed the memorandum of cross objection under Order XLI Rule 22 of the Code of Civil Procedure, 1908 for modification of the decree.
3. We agree with the cross objector that a provision ought to have been incorporated in the decree for sale of the 'A' Scheduled property for realisation of the amount. Order XXXIV Rule 3 of Cross Objection No.26 of 2012 IN A.S.No.483 of 1996 3 the Code of Civil Procedure, 1908 provides for such a relief and not a mere charge as has been granted by the court below in the instant case. We would have allowed the memorandum of Cross Objections had the Bank remitted the requisite court fee for modification of the decree. The court fee is payable on the cross objections like that on the memorandum of appeal as held in Superintending Engineer v. Subba Reddy [(1999) 4 SCC 423]. But the Bank has paid court fee of ` 2 only under Schedule II Article 11(t) of the Kerala Court Fees and Suits Valuation Act, 1960. The same has been done on the premise that the omission to provide for realisation of the amount by sale of the property is only an accidental slip.
4. We are unable to mould the decree in disposal of the cross objections for want of payment of proper court fee on its memorandum which was mandatory. The failure to couch the decree accordingly and mould the relief cannot be termed Cross Objection No.26 of 2012 IN A.S.No.483 of 1996 4 as a mere finding as has been attempted to be projected by the Bank. The proper course for the Bank was to either pay the requisite court fee on the memorandum of cross objections or apply for correction of the decree. The decree can be corrected by resort to Section 152 of the Code of Civil Procedure, 1908 to correct an error arising from any omission. The decree can be corrected 'at any time' and needless to say that the period of limitation for levying execution would start from the date of the corrected decree only.
The Cross Objections is dismissed, subject to the above. No costs.
Sd/-
V.CHITAMBARESH, JUDGE Sd/-
SATHISH NINAN, JUDGE nj/13.02.2017 //TRUE COPY// P.S. TO JUDGE.