(1.) The petitioner is the defendant in O.S.No.142 of 2011 on the file of the Court of the Subordinate Judge of Kattappana, a suit instituted by the respondent/plaintiff for specific performance of Ext.A1 agreement dated 6.5.2011 to sell six cents of land with the building therein. The suit was decreed exparte by judgment delivered on 11.01.2013. By that decree, the defendant was directed to execute a sale deed after accepting the balance sale consideration within one month from the date of the decree. It was stipulated that in the event of default on the part of the defendant to execute the sale deed, the plaintiff will be entitled to get the sale deed executed within one month of the default by depositing the balance sale consideration in court. The total agreed sale consideration according to the plaintiff was Rs.3,00,000/- and out of the said amount, the sum of Rs.1,85,000/- was paid to the defendant on the date of the agreement. Going by the averments in the plaint, the balance sale consideration payable to the defendant is Rs.1,15,000/-.
(2.) Three months after the exparte decree for specific performance was passed, to be exact on 12.4.2013, the plaintiff filed E.P.No.15 of 2013 in the Court of the Subordinate Judge of Kattappana praying that a conveyance in respect of the decree schedule property may be executed through court and the decree schedule property may be delivered over to him. Along with the said application, he filed E.A.No.64 of 2013 wherein he prayed for condoning the delay in depositing the balance sale consideration and for permission to adjust the amount awarded by way of costs namely the sum of Rs.41,760/- and to permit him to deposit the sum of Rs.73,240/-. The plaintiff had in the affidavit filed in support of the application averred that under the decree she is bound to deposit the sum of Rs.1,15,000/- towards the balance sale consideration, that under the decree she is entitled to realise the sum of Rs.41,760/- by ways of costs and therefore, she may be permitted to adjust it towards the balance sale consideration. The court below allowed the said application by order passed on 12.4.2013 itself without notice to the defendant. The said order is under challenge in this civil revision petition filed under section 115 of the Code of Civil Procedure.
(3.) Heard Sri.V.A.Ajaikumar, learned counsel appearing for the petitioner. Perused the records. The short question that arises for consideration in this civil revision petition is whether the decree holder in a suit for specific performance is entitled to set off or adjust the amount awarded by way of costs by the trial court or the appellate court against the balance sale consideration payable by him/her in terms of the decree granting specific performance. The decretal portion of the judgment in O.S.No.142 of 2011 reads as follows: