IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE EIGHTEENTH (18TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.270 of 2009 Between: M/s Makaria Refineries, Adilabad … Petitioner And: The Cotton Corporation of India Ltd., Rep. by its Branch Manager, Adilabad …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.270 of 2009 ORDER: This revision is directed against the order dated 03.10.2007 in IA No.223 of 2002 in OS No.36 of 1997 on the file of the Senior Civil Judge, wherein the said application filed by the petitioner under Sections 144 and 151 CPC seeking restitution of the excess amount of Rs.2,57,849.35 with interest at 18% per annum from the date of deposit, till the date of realization, was dismissed. 2. Heard both sides. Perused the record. 3 . The petitioner filed suit OS No.9 of 1986 against the respondent/first defendant, in which the respondent made a counter claim. The suit was decreed on 19.12.1989 for Rs.13,47,211.88 along with proportionate costs of Rs.1,00,966.35. The respondent herein filed appeal AS No.177 of 1990 before this Court and the same was admitted. By order dated 8.02.1990, this Court directed the respondent to deposit 1/4th of the decretal amount and also to furnish a bank guarantee for 50% of the decretal amount. The respondent herein accordingly made deposit. By judgment dated 14.07.1997, this Court disposed of the appeal and remanded the matter to the trial Court i.e., District Court, Adilabad with certain directions. The suit was made over to the Court of the Senior Civil Judge, Adilabad and was re-numbered as OS No.36 of 1997. On a joint memo filed by both the parties, decree was passed for Rs.1,79,920/- in OS No.36 of 1997, whereas prior to remand the suit i.e., OS No.9 of 1986 was decreed for Rs.13,47,211.88. The petitioner deposited 1/4th of the said amount i.e., Rs.3,36,803/- with proportionate costs of Rs.1,00,966.35, totaling Rs.4,37,769.35. Hence, the petitioner paid Rs.2,57,849.35 and therefore he sought for restitution of the said excess amount with interest at 18% per annum. 4. The respondent filed counter contending that there is no finding in the judgment to the effect that the suit is decreed for Rs.1,79,920/- and the decree also silent about the same and hence, the question of petitioner depositing excess amount does not arise and by filing mere calculation memo, it cannot be said that there was excess amount, in the absence of any direction in the decree. 5. The learned Senior Civil Judge, by impugned order, dismissed the application, holding that the decree in the suit lacks clarity regarding the liability and in the absence of any amendment to the said decree dated 21.11.2001 in accordance with the directions of this Court and in the absence of adjudication of the mutual liability of the parties, plea of restitution cannot be considered. 6. The suit OS No.9 of 1986 on the file of the District Judge, Adilabad, was decreed on 19.12.1989 and the decree reads as follows: “1. That the suit of the plaintiffs be and hereby is dismissed with costs. 2. That the plaintiff is directed to pay the deficit Court fee of Rs.62,528.50 within one month from today i.e., 19.12.1989 failing which a certificate should be sent to the District Collector, Adilabad for recovery of the said amount; 3. That the counter claim of the defendant is decreed for Rs.13,47,211.88 ps. With interest at 12% p.a. from the date of decree i.e., 19.12.1989 till the date of realization; 4. That the rest of the counter claim is dismissed without costs; 5. That the plaintiff do pay Rs.1,00,966.35 ps. to defendant towards the proportionate costs.” 7. As can be seen from the above while dismissing the plaintiff’s suit, counter claim of the defendant was allowed for Rs.13,47,211.88 with interest at 12% per annum, besides directing the plaintiff to pay costs of Rs.1,00,966.35. On appeal in AS No.177 of 1990, filed by the plaintiff, the matter was remanded to the trial Court with the following observations: “We cannot consider the plea of the appellants with regard to deficiency in the oil content on the date of their bids for the reason that the said plea was not taken in the written statements and there is no triable issue in that regard. In fact, that aspect will be an implied one with regard to the effect of delay in the re-auction of the cottonseeds after the lapse of reasonable period of 15 days. As such, the findings on other issues will depend upon the determination of the price pursuant to this remand. In the circumstances, the matter was remitted back to the Court of the District Judge, Adilabad, for determination of the price of the cotton seed had it been resold between the 16th and 30th day after the sale in favour of the plaintiff and then arrive at the differential price. These appeals are allow to the extent indicated above and remanded to the Court below.” 8. Subsequent to the remand, the matter was transferred to the Court of the Senior Civil Judge, Adilabad and re-numbered as OS No.36 of 1997 and the decree was passed on 21.11.2001 as follows: “That the suit be and hereby is disposed off as per the directions of Hon’ble High Court of A.P., in AS No.176 of 1990 and AS No.177 of 1990 under its common judgment, dt.14.07.1997, holding that as per the extract of sales register filed by both sides Advocates under joint memo dated 7.11.2001, the value of the cotton seeds in question as per the contract rate at which plaintiff agreed to purchase 9. Having arrived at differential price of cotton seeds in question at Rs.1,79,920/-, the learned Senior Civil Judge, Adilabad failed to determine the mutual liabilities of the parties and pass an appropriate decree. The above decree is totally silent as to who has to pay, what amount and to whom. The decree dated 21.11.2001 is thus inchoate and incomplete. As seen from the impugned order, the plaintiff earlier filed an application for amendment of the decree under section 151, 152 and 153 of CPC and the same was not pressed on 25.06.2005. As rightly observed by the learned Senior Civil Judge in the earlier decree in OS No.9 of 1986 liability of the plaintiff to pay certain amount to the defendant was clearly fixed, but the same was not done while passing the subsequent decree after remand in OS No.36 of 1997. The said decree dated 21.11.2001 having arrived at differential price of cotton seeds in a sum of Rs.1,79,920/- does not contain any further direction as to whether the said amount is liable to be paid and if so by whom and to whom. In the absence of amendment of the decree, fixing the liability on the concerned party for payment of the said amount, the trial Court has rightly held that the question of directing restitution does not arise. 10. Section 2(2) defines the expression ‘decree’ as meaning of the formal expression of an adjudication which, so far as regard the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The decree dated 21.11.2001 in OS No.36 of 1997 does not disclose that any such conclusive determination of rights of the parties has taken place. The above said decree, therefore does not answer the description of the decree as defined under section 2(2) CPC. Based on such decree, which is inchoate and incomplete, no restitution can be ordered. 11. It is open to the petitioner/plaintiff to avail other remedies available under law including the amendment of the decree and on such application being made, the trial Court shall dispose of the same on its own merits. In the circumstances, the impugned order does not call for any interference. 12. In the result, the civil revision petition is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 18.08.2011 bss