PERINGOTTUKARA NAMBOOTHIRI YOGAKSHEMA SABHA Vs. ALIYAR

JUDGEMENT

(1.) Petitioners are the defendants in O.S.No.578/00 on the file of the Munsiff's Court, Aluva. Respondent is the plaintiff in the said suit. That was a suit for settlement of accounts. It appears that immediately after filing of the said suit, petitioners filed O.S.No.9/01 before the Munsiff's Court, Perumbavoor against the respondent for recovery of money due under a promissory note, wherein, the co-obligant was also impeaded as the second defendant. Preliminary decree was passed in O.S.No.578/00 filed by the respondent ordering that account of the plaintiff and defendants with respect to Account No.12/1997-98 D.P.N. and the account of Kuri No.68 will be taken for settling the account between the plaintiff and the defendants and directing further that all other claims of the plaintiff will be considered in the final decree proceedings and that the parties shall WPC 186/09 bear their respective costs.

(2.) It is submitted by the counsel for the petitioners that Account No.12/1997-98 D.P.N. is in respect of the demand promissory note, which is the subject matter of O.S.No.9/01 filed by the petitioners against the first respondent. O.S.No. 9/01 was, however, dismissed vide Exhibit P2 judgment. Petitioners filed A.S.No.89/02 before the Sub Court, Perumbavoor and the appellate court disposed of the appeal directing that the appellant, who is the petitioner herein, can produce all the documents with respect to the loan transaction in Exhibit B3 suit (O.S.No.578/00) before the Munsiff's Court, Aluva and realise the money from the respondents and that the accounts can be produced in the final decree proceedings in the said suit. The appellate court further observed that in view of the direction, there is no need to remand the case and it was, therefore, that vide Exhibit P3 judgment, the appeal filed against WPC 186/09 Exhibit P2 judgment was dismissed. After the dismissal of the appeal, petitioners filed Exhibit P4 application in O.S.No.578/00 for passing a final decree, wherein, the right reserved vide Exhibit P3 judgment in the appeal, was also made mention of. The final decree application was not numbered and was dismissed by the court below vide Exhibit P5 order for the reason that the petitioners are the defendants in O.S.No.578/00, werein, preliminary decree has been passed in favour of the respondent/ plaintiff in that suit and that the final decree application filed considering the liberty granted to the petitioners vide Exhibit P3 judgment in A.S. No.89/07 does not, however, enable the petitioners to file a final decree application pursuant to Exhibit P1 preliminary judgment in O.S.No.578/00.

(3.) It is worthy to note that Exhibit P1 judgment as also Exhibit P3 judgment in appeal filed against Exhibit P2 judgment was all between the same parties, except that the co-obligant also WPC 186/09 was impleaded as the second defendant/second respondent in the suit and in the appeal disposed of respectively vide Exhibits P2 and P3 judgments. The direction given by the first appellate court vide Exhibit P3 judgment therefore, binds the respondent herein, who was the first respondent in the said appeal. Further, when in a suit for settlement of accounts a preliminary decree is passed directing that accounts be taken in the final decree proceedings for settling the accounts between the plaintiff and the defendants, who are respectively the respondent and petitioners herein, the court below is not justified in dismissing Exhibit P4 application for passing of a final decree vide Exhibit P5 order observing that the plaintiff is not the petitioner in the final decree application. When accounts are allowed to be settled either party to the suit can be enabled to move application for final decree to have the accounts being settled as allowed by the WPC 186/09 preliminary decree, especially in view of the binding direction in Exhibit P3 judgment, as is the case in a partition suit, wherein, any of the sharers can move for passing of the final decree in terms of the Hubert Peyoli v. Santhavilasathu Kesavan Sivadasan, 1998 AIR(Ker) 344 (Kerala)(DB) liminary decree. I, therefore, hold that Exhibit P5 order passed by the court below dismissing Exhibit P4 final decree application filed by the petitioners is unsustainable and I set aside Exhibit P5 order without notice to the respondent, as the respondent had not appeared in Exhibit P4 final decree application, as the said application was being dismissed without even numbering the same. Exhibit P4 final decree application is remanded to the court below for being proceeded with according to law. The writ petition is disposed of with the above directions.