IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 RSA.No. 303 of 2008 ----------------------- (A.S. No 154 of 2004 of the District Court, Kottayam) (O.S. No 310 of 1998 of the Addl. Sub Court, Kottayam) APPELLANT - RESPONDENTS 1 TO 3 - PLAINTIFFS 1 TO3 ------------------------------------------------------------------ 1. P.R.LAKSHMIKUTTY AMMA, W/O.LATE M.G.KARUNAKARAN NAIR, MULACKAL HOUSE, ELAMGULAM, KANJIRAPPALLY. 2. K.MANOJ, S/O.LATE M.G.KARUNAKARAN NAIR, OF DO. 3. K.VINOD, S/O. DO. DO. BY ADV. SRI.V.G.ARUN RESPONDENTS: APPELLANTS & 4TH RESPONDENT DEFENDANTS --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. 2. ASSISTANT EXCISE COMMISSIONER OF KOTTAYAM. 3. THE TAHSILDAR, KANJIRAPPALLY. 4. K.MANJU, D/O.LATE M.G.KARUNAKARAN NAIR, MULACKAL HOUSE, ELAMGULAM P.O., KANJIRAPPALLY. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------- R.S.A. No 303 of 2008 ------------------------------------------------------- Dated this the 22nd May 2008 JUDGMENT Plaintiffs in O.S. No 310 of 1998 on the file of the Additional Sub Court, Kottayam are the appellants in this R.S.A. They filed O.S. No 310 of 1998 aforesaid for a declaration and for consequential injunction against the respondents. First plaintiff is the widow and plaintiffs 2 to 4 in the suit are the children of Karunakaran Nair who was an abkari contractor in relation to arrack shop Nos. 9 to 12 of Pampady range for the year 1980-81 and arrack shop Nos. 15 to 18 and 21 to 24 of Pampady range for the year 1981-82. He committed default in payment of kist amount. When the respondents initiated revenue recovery proceedings he filed O.S. No 61 of 1982 before the Sub Court, Kottayam. The said suit was dismissed, but in the appeal filed before the District Court, Kottayam, A.S.No 230 of 1983, an injunction was granted prohibiting the respondents therein from realising the arrears for the period 1981-82. In the meanwhile, it so happened that the respondents in the said appeal who are also the respondents herein collected a total amount of Rs 1,04,434.80 during the period from 12.10.1983 to 30.09.1987. Hence late Karunakaran Nair filed E.P. No 230 of RSA 303/08 2 1983 in O.S. No 61 of 1982 for restitution under Section 144 of the Code of Civil Procedure and that was allowed on 7.7.1988 directing the respondents to return the amount within one month from the date of the order. However, Karunakaran Nair did not take any further steps for realisation of the amount from the respondents. On the other hand on 20.03.1991 he sent a letter to the Revenue Minister to set off that amount against the kist arrears of 1980-81. It was in the meanwhile that proceedings were initiated under the Revenue Recovery Act for sale of the property that belonged to Karunakaran Nair and his surety. The case of the appellants/plaintiffs was that the amount which was due to Karunakaran Nair and the property of Karunakaran Nair which was sold in revenue recovery proceedings for Rs 50,100/- would satisfy the claim of the respondents towards the kist arrears due from late Karunakaran Nair but without adjusting that amount due to Karunakaran Nair, viz. Rs 1,04,434.80 for which restitution was ordered in O.S. 61 of 1982, respondents are proceeding to sell the property of the surety as also the plaintiffs who are the legal representatives of deceased Karunakaran Nair with a view to humiliate them. The prayer in the suit was for a declaration that the appellants/plaintiffs are entitled to get set off of the amount with interest at 12% per annum towards kist arrears due from Karunakaran Nair for the year 1980-81 and for a mandatory injunction RSA 303/08 3 directing the respondents not to take any steps for realisation of arrears of kist amount for the year 1980-81 until the amount for which restitution was ordered is set off against the amount due towards kist arrears. 2. The suit was resisted by the respondents raising several contentions inter alia, that the suit is not maintainable being one which is barred under section 144 (2) of the C.P,.C. The trial court decreed the suit, but in appeal filed by the respondents the decree passed by the trial court was set aside allowing the appeal and directing that it is open to the present respondents to consider the request of the present appellants for set off or adjustment in view of Ext A2 order in E.P.No 201 of 1988 in O.S. No 61 of 1982 aforesaid allowing restitution. It is assailing the said judgment of the first appellate court that this R.S.A is filed. 3. It is contended before me by the learned counsel for the appellants that when admitted amounts are due from the respondents it was only proper for the first appellate court to have allowed set off of that amount to do justice to the parties and that the dismissal of the suit has rendered the appellants with no other relief. Section 144 (2) of the Code of Civil Procedure is extracted below for easy reference. 144. Application for restitution. (1) xx xx xx xx xx xx RSA 303/08 4 (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1). The provision of Section 144 (2) of the C.P.C extracted above is a clear bar for any suit for the purpose of obtaining restitution or other relief which could be obtained by an application under sub-section (1). In fact by Ext A2 order the relief of restitution which the appellants prayed for was allowed by the execution court. It is submitted that though it was so allowed further steps for realisation of that amount from the respondent State had not been taken and late Karunakaran Nair had made a request to have the amount set off as against the kist amount due from him for the year 1980-81. When a suit for obtaining restitution stands specifically barred by reason of Section 144 (2) of C.P.C, it is futile to contend that the same relief has to be granted in this suit to the appellants. The relief of restitution which ought to have been obtained in execution in O.S. No 61 of 1982 aforesaid and was allowed by the execution court but which was not recovered from the respondents cannot be sought to be got adjusted by a decree in another suit from the respondents when a suit for that purpose is clearly barred. As rightly found by the first appellate court the suit stands barred under Section 144 (2) of the C.P.C and no question of law does arise for consideration in this second appeal and much less any substantial RSA 303/08 5 question of law. This R.S.A in the circumstances is devoid of merit and is dismissed in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 22/05/2008 en [true copy]