K C THOMAS Vs. THOMAS ALIAS TOMY

JUDGEMENT

(1.) The trial court decreed the suit with cost. It was challenged in the appeal by defendant. The appeal was allowed in part modifying the decree. The judgment of the appellate Court did not provide for cost either of the appellate court or trial court. The question is whether the plaintiff is entitled to the proportionate cost for the confirmed portion of the decree as granted by the trial Court, whether there is merger of the trial court decree regarding the cost with the appellate decree and if riot whether the decree holder is entitled to realise the proportionate cost awarded by the trial court.

(2.) Petitioner is the decree holder. He instituted the suit seeking a decree for realisation of Rs. 4,54,510/- with interest and cost. Suit was decreed on 10.4.02. Under Ext.Pl decree petitioner was allowed to realise it with interest at 6% on 2,26,011/-from 26.4.99 till realisation and costs of the suit. Respondent judgment debtor challenged the appeal in A.S.375/02 before this court. A Division Bench of this Court under Ext.P2 judgment modified the decree. Ext.Pl decree was modified as follows:

(3.) Adv. Sri. S.V.Balakrishna Iyer, learned Counsel appearing for the petitioner relying on the decisions of Supreme Court in State of Madras v. Madurai Mills Co. Ltd AIR 1987 SC 681 and a learned single Judge of High Court of Orissa in Dambarudhar Bhunya v. Muralidhar Bhunya argued that there is no merger of the cost part of the decree of the trial court with the decree of the appellate Court and as the cost awarded by the trial court was not set aside, varied or modified by the appellate Court, decree holder is entitled to the proportionate cost of the decree as confirmed in appeal and therefore Ext.P5 order is to be set aside. Learned Counsel appearing for respondent relying on the Full Bench decision of this Court in Kannan v. Narayani 1980 KLT 9 and Division Bench decision in Saheeda v. Hamelatha 2002 (3) KLT 301 and that of the Apex Court in Kunhayammed v. State of Kerala argued that as Ext.P2 decree was challenged in appeal and the decree was modified by the appellate Court, the decree of the trial court merged with the decree of the Appellate Court and therefore the only executable decree is that of the appellate Court and as the appellate Court decree did not-provide for any cost, executing court rightly held that petitioner is not entitled to claim the cost awarded by the trial court and the petition is not maintainable.