Kerala High CourtThe State Bank Of Travancore vs Arayil Chathu on 29 February, 1996IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT:

                 THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
                                          &
                  THE HONOURABLE MR. JUSTICE SATHISH NINAN

      WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938

                      CO.No. 26 of 2012 () IN AS.483/1996
                         -------------------------------------
AGAINST THE DECREE IN O.S.No.26/1995 DATED 29.2.1996 ON THE FILE OF THE
                             SUB COURT, BADAGARA
                                          &
  AGAINST THE JUDGMENT IN AS 483/1996 of HIGH COURT OF KERALA DATED
                                     03.04.1998


CROSS APPELLANT/RESPONDENT/PLAINTIFF:
---------------------

               THE STATE BANK OF TRAVANCORE
               KALLACHI BRANCH, REPRESENTED BY THE MANAGER
               AND PRINCIPAL OFFICER, KALLACHI BRANCH,
               VADAKARA TALUK.

                BY ADV. SRI.K.K.JOHN

RESPONDENTS:APPELLANTS/DEFENDANTS:
-----------------

       1.      ARAYIL CHATHU, S/O.KANNAN,
               AGED 40 YEARS, BUSINESS,
               KUNNUMMAL AMSOM, VATTOLI DESOM,
               VADKARA TALUK.

       2.      K.P.VASU, KOPPUMCHALIL
               S/O.CHATHU, AGED 41 YEARS,
               KAIPURATH HOUSE,
               NARIPPATTA AMSOM, DESOM, VADAKARA TALUK.

                R BY ADV. SRI.P.K.LAKSHMANAN
                R BY ADV. SRI.RAJEEV LAKSHMANAN

             THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD
       ON 13-02-2017, THE COURT ON 15-02-2017 DELIVERED THE
       FOLLOWING:



       V.CHITAMBARESH & SATHISH NINAN, JJ.
                ---------------------

          Cross Objection No.26 of 2012

               IN A.S.No.483 of 1996

                ---------------------

   Dated this the 15th day of February, 2017

                  J U D G M E N TChitambaresh, J.The suit    for realisation of amounts due

to the plaintiff Bank from the defendants was

decreed in the following terms:"In the result, the suit is decreed

        directing  the    defendants   to   pay

        plaintiff a sum of ` 2,59,301/- with

        future interest at 15% per annum with

        quarterly interest from   the  date  of

        plaint till realisation and the cost of

        the suit. The said amount   shall be a

        charge  on  the  plaint   'A'  schedule

        property."The  Appeal  Suit   filed   by   the   defendants was

dismissed for non prosecution on 3.4.1998 and the

memorandum of Cross Objections has now come up for

final hearing.2.   The Bank points out that the court

below should have also granted a decree directing

the sale of the property mortgaged in default ofCross Objection No.26 of 2012IN A.S.No.483 of 19962the     defendants        paying   the  amount.     The Bank

contends that an equitable mortgage by deposit of

title      deeds      had     been  created by   the   second

defendant in its favour.            A decree for the sale of

the said property scheduled as 'A' to the plaint

ought to have been granted in the wake of prayer

'b' in the plaint which is extracted below:"for sale of the properties shown in

             'A' Schedule hereunder and to apply

             sale proceeds towards the amount due to

             the plaintiff under the decree and if

             sale proceeds are not sufficient to

             proceed        against  the   defendants

             personally."It is on that premise has the Bank filed the

memorandum of cross objection underOrder XLI Rule

22    of    the     Code     of  Civil Procedure,   1908  for

modification of the decree.3.     We agree with the cross objector that

a provision ought to have been incorporated in the

decree for sale of the 'A' Scheduled property for

realisation of the amount.            Order XXXIV Rule 3 ofCross Objection No.26 of 2012IN A.S.No.483 of 19963the Code of Civil Procedure, 1908 provides for such

a relief and not a mere charge as has been granted

by the court below in the instant case.           We would

have allowed the memorandum of Cross Objections had

the Bank remitted the requisite court fee for

modification of the decree.              The court fee is

payable on the cross objections like that on the

memorandum of appeal              as held inSuperintending

Engineer v. Subba Reddy[(1999) 4 SCC 423].             But

the Bank has paid court fee of ` 2 only under

Schedule IIArticle 11(t)of the Kerala Court Fees

and Suits Valuation Act, 1960.            The same has been

done on the premise that the omission to provide

for realisation of the amount by sale of the

property is only an accidental slip.4.     We are unable to mould the decree in

disposal       of    the     cross objections for  want  of

payment of proper court fee on its memorandum which

was mandatory.             The failure to couch the decree

accordingly and mould the relief cannot be termedCross Objection No.26 of 2012IN A.S.No.483 of 19964as a mere finding as has been attempted to be

projected by the Bank.             The proper course for the

Bank was to either pay the requisite court fee on

the memorandum of cross objections or apply for

correction of the decree.                 The decree can be

corrected by resort toSection 152of the Code of

Civil Procedure, 1908 to correct an error arising

from any omission.           The decree can be corrected 'at

any time' and needless to say that the period of

limitation for levying execution would start from

the date of the corrected decree only.The Cross Objections is dismissed, subject

to the above. No costs.Sd/-V.CHITAMBARESH, JUDGE



                                                 Sd/-SATHISH NINAN, JUDGE


nj/13.02.2017

                          //TRUE COPY//

                                   P.S. TO JUDGE.