IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 AS.No. 74 of 1997(E) -------------------- OS.176/1996 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): PLAINTIFF: ------------------------------------------ V.SURENDRAN, RESIDING AT PANKAJA BHAVAN, POOJAPPURA, TRIVANDRUM. BY ADV. SRI. K.RAVIKUMAR RESPONDENT(S): DEFENDANTS 1 AND 2: --------------------------------------------------------------- 1. WE BUILD (PRIVATE) LIMITED COMPANY, OFFICE AT T.C.15/500 JAGATHY, TRIVANDRUM - 14. 2. C.KAMALESWARAN, S/O.N.CHELLAPPAN, RESIDING IN JAGATHY HOUSE, CHENGAZHACHERRY, TRIVANDRUM. R2 BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE, BY ADV. SRI.K.HARILAL. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J ----------------------------------- A.S. NO. 74 OF 1997 ------------------------------------------ Dated this the 21st day of June, 2010. J U D G M E N T This is an appeal filed by the final decree petitioner before the trial court in O.S.176 of 1976. As per the final decree passed the court found that the plaintiff is entitled to recover a sum of Rs.38,423/- with interest thereon at 12% interest from this date till realisation from 1st defendant and his assets. The short point that had been canvased before this Court is regarding the particular date from which the plaintiff is entitled to the amount. Or in other words, it is contended that what have been due after particular date is to be shared equally deducting 5,000/-. It is also stated that the 1st defendant is entitled to adjustment of the retention of the amount of Rs.51,470/-. The learned counsel for the appellant contends before me, there was no stipulated date as per the preliminary decree and it was during the pendency of the appeal an application for amendment was filed and the date of 5.2.1971 was entrusted. The learned counsel would contended that it was not proper on the part of the trial court to have entertained an application for amendment when the appeal was pending. We need not go into A.S. NO. 74 OF 1997 2 those aspects for the reasons it has not been done behind the appellate court. The amendment of judgment and decree has been brought to the notice of the appellate court, the appellate court has considered about the correctness of the same and had upheld the date 5.2.1971 as relevant and correct. Against that, second appeal was filed and it has been dismissed. Therefore whatever is stated in the preliminary decree and confirmed by the appellate court have been reiterated by the second appellate court and therefore, the preliminary decree has become final. When the preliminary decree has become final, a court passing a final decree can not go beyond the terms of the preliminary decree so as to upset the finding rendered. So as the matter stands 5.2.1971 is the crucial date. Now what is the amount i.e received after 5.2.1971 is the next question. So many contentions were raised by the 1st defendant contending that it is entitled to more than Rs.6,27,452/- from the plaintiff. But the court below rightly brushed aside all those things and held that, an amount that is to be accounted and a final decree to be passed is only with respect to Rs.1,89,789/-. As per the preliminary decree, the plaintiff is entitled to 50% of this amount minus 5,000/- i.e. 94,893/- minus 5,000/- which would be 89,893/-. As per the preliminary A.S. NO. 74 OF 1997 3 decree the 1st defendant is granted the right to if the retention amount adjusted. The retention amount to be adjusted would be Rs.51,470/-. So when Rs.51,470/- is deducted from Rs.89,893/- the balance comes to Rs.38,423/-. Or in other words, this is the amount which the plaintiff is entitled to get from the 1st defendant when the accounts are finally settled with respect to the amount i.e received after 5.2.1971. So there is substantial compliance of the preliminary decree and nobody is able to point out that any amount other than Rs.1,89,786/- has come into the hands of the 1st defendant after 5.2.1971. When it is so, the plaintiff is entitled to the amount awarded by the court below and therefore, the appeal lacks merits and therefore, it is dismissed but without costs. M.N. KRISHNAN, JUDGE. pm