IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 FAO.No. 33 of 2005() -------------------- AGAINST THE ORDER DATED 28/06/2004 IN IA 1968/02 IN OS.423/1994 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANTS/PETITIONERS 1 TO 5/DEFENDANTS: ---------------------------------------------------------------------- 1. STATE OF KERALA. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 4. THE EXCISE INSPECTOR, KATTAKKADA. 5. THE WELFARE FUND INSPECTOR, (ARRACK), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. R. LAKSHMI NARAYAN. RESPONDENT(S).COUNTER PETITIONERS 1& 2/PLAINTIFFS: ----------------------------------------------------------------------------------- 1. KURUVILA ULAHANNAN, NIRAPPUKKATTIL HOUSE, PIRAVOM P.O., ERNAKULAM DISTRICT. 2. K.J.SAJU, S/O.KURUVILA ULAHANNAN, NIRAPPUKKATTIL HOUSE, PIRAVOM P.O., ERNAKULAM DISTRICT. ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE FOR R1 & R2 SRI.KOSHY GEORGE SRI.P.I.DAVIS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 33 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of June, 2009. JUDGMENT Raman, J, The appellants are the defendants in the suit O.S. 423 of 1994 on the file of the Additional Sub Court, Thiruvananthapuram. The suit was one for declaration that the plaintiff cannot be proceeded against for realisation of the kist and excise duty being the licensee of of Group I arrack shop in Kattakkada Range for the year 1993-1994 and for refund of a sum of Rs.97,313/- with interest thereon and for injunction. The first respondent was the successful bidder of the shop in the year 1993-94 and the second respondent was the power of attorney holder. The bid was for Rs.29,90,888/-. There was dispute between the parties as to the amount of excise duty remitted and whether the required quantity of rectified spirit was lifted by the plaintiff or not. Though the State contended that there was default in payment of excise duty, the plaintiff FAO.33/2005. 2 contended otherwise. Needless to say, the suit was adjudicated in favour of the plaintiff after setting the appellants ex-parte. Applications thereafter filed for setting aside the ex-parte decree and to condone delay also happened to be dismissed for default. Hence that application was sought to be restored by filing yet another set of applications. That was allowed and the applications filed for setting aside the ex-parte decree and for condoning delay were restored to file. Those applications were again dismissed for default. The second application for restoration of the application for setting aside the ex-parte decree was eventually dismissed. That order is challenged in this appeal. 2. Normally this appeal would not have been entertained by this court. However, this court admitted the case. But during the pendency of the appeal respondent-plaintiff got the benefit of an amnesty scheme and settled the dispute including the disputed amount in respect of the year in question, thereby he waived his benefit under the decree. FAO.33/2005. 3 3. If so, nothing remains further pursuant to the decree passed. In such circumstances, no purpose will be served by allowing this appeal. Since there is no lis pending between the parties, the question of restoring the suit does not arise. For these reasons, the Appeal stands dismissed as infructuous. P.R. Raman, Judge P. Bhavadasan, Judge sb.