Ambika Rajan Vs. Basheera Beevi and anr. - Court Judgment

Excerpt:
- - 1,50,000/-.the suit was decreed on 30.10.2001 the petitioner filed execution petition for realisation of the decree amount from the respondents by attachment and safe of their properties and by arrest and detention of the second judgment debtor in civil prison. section 20 of the act provides that when the parties agree for referring the case to the lok adalat for settlement and if the court is prima facie satisfied that there are chances of such settlement, the court shall refer the case to the lok adalat. the court must be satisfied, as provided under clause (ii) of sub-section (1) of section 20, that that matter to be referred to the lok adalat is an appropriate one to be taken cognizance of by the lok adalat. the parties could however, agree in what manner the decree should be satisfied. at best, refund could only be of any court fee paid in the execution petition, if it is otherwise permissible under law. 19. benefits under lok adalat 1. there is no court fee and if court fee is already paid the amount will be refunded if the dispute is settled at lok adalat according to the rules, 2. the basic features of lok adalat are the procedural flexibility and speedy trial of the disputes, there is no strict application of procedural laws like the civil procedure code and the evidence act white assessing the claim by lok adalat.k.t. sankaran, j.1. the question of law involved in this writ petition is whether the decree holder in a suit for realisation of money is entitled to get refund of the court fee paid on the plaint, under section 21 of the legal services authorities act, 1987, when the dispute between the parties in the execution petition is settled before the lok adalat.2. the petitioner fled the suit against the respondents for realisation of rs. 1,71,000/with interest on rs. 1,50,000/-. the suit was decreed on 30.10.2001 the petitioner filed execution petition for realisation of the decree amount from the respondents by attachment and safe of their properties and by arrest and detention of the second judgment debtor in civil prison. the respondents entered appearance in the execution petition and filed objections. the parties submitted before the executing court that there was a possibility of settlement. therefore, the execution petition was referred to the lok adalat organised by the chirayinkeezh taluk legal services committee constituted under section 19 of the legal services authorities act. before the lok adalat the matter was settled between the parties and the respondents agreed to pay a sum of rs. 1.25,000/- to the decree holder in full and final settlement of the case, a compromise petition was also filed by the parties. the compromise petition was accepted, ext.p3 award dated 8-12-2007 was passed. the operative portion of the award reads as follows:decree holder and judgment debtor present. matter settled in the adalat. compromise petition filed, refund for court fee to the decree holder as per rules.3. the petitioner/decree holder filed execution application in the execution petition before the executing court for refund of the court fee of rs. 11,125/- paid by her as court fee in the suit the executing court dismissed that application by the order dated 20-8-2008, which is under challenge in this writ petition. the executing court held that no dispute involved in the suit was referred to the lok adalat, as the decree had already been passed. though the lok adalat directed refund of the court fee as per rules, the rules do not provide for refund of any court fee in the execution proceedings. it was also held that section 21 of the legal services authorities act contemplates only a compromise or settlement in respect of a metier in a pending suit.4. learned counsel for the petitioner referred to the various provisions in the legal services authorities act. he also relied on the decisions in salem advocate bar association, tamil nadu v. union of india : air2005sc3353 , p.j. thomas v. thomas job (2005) 6 scc 478, vasudevan v. state of kerala : air2004ker43 and sankunni sornadhan v. vinodhini amma 2000 (1) klt 640. the counsel for the petitioner also raised a contention that on the passing of the award by the lok adalat the decree passed in the suit gets merged into the award and m substitution of the decree passed by the trial court, the award passed by the lok adalat would be treated as the decree. the counsel contends that, therefore, the court fee is liable to be refunded under section 21 of the legal services authorities act.5. the legal services authorities act, 1987 was enacted to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise lok adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. section 2(a) of the legal services authorities act defines 'case' thus;'case' includes a suit or any proceeding before a court.section 2(aaa) defines court as''court' means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions.section 19 provides for organisation of lok adalats. it provides that every state authority or district authority of the supreme court legal services committee or every high court legal services committee or, as the case may be, taluk legal services committee may organise lok adalats at such intervals and pieces. section 19(5) of the act reads as follows:19(5) a lok adalat shall have jurisdiction to between the parties to a dispute in respect of:(i) any case pending before; or(ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the lok adalat is organised:section 20 of the act provides that when the parties agree for referring the case to the lok adalat for settlement and if the court is prima facie satisfied that there are chances of such settlement, the court shall refer the case to the lok adalat. where any case is referred to the lok adalat under sub-section (1) of section 20, the lok adalat shaft proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. section 21 of the act reads as follows21. award of lok adalat:- (1) every award of the lok adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a lok adalat in a case referred to it under sub-section (1) of section 20 the court-fee paid in such case snail be refunded in the manner provided under the court fees act. 1870 (7 of 1870).(2) every award made by a lok adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court, against the award.6. the lok adalat shall have the same powers as are vested in a civil court under the code of civil procedure, 1908, while trying a suit in respect of the matters mentioned in section 22 of the legal services authorities act. sub-section (2) of section 22 provides that every lok adalat shall have the requisite powers to specify its own procedure for the determination of any dispute before it. section 25 of the act states that the provisions of the act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the act.7. the definition of the expression 'case' in section 2(a) indicates that it includes a suit or any proceeding before a court. therefore, execution proceedings also come within the expression 'case'. there can be a valid reference of an execution petition to the lok adalat. a compromise effected before the lok adalat shall be enforceable. the award shall be deemed to be 'a decree of a civil court or, as the case may be an order of any other court' as provided in section 21 of the act. but, that does not mean that when an execution petition is referred to the lok adalat, the award passed by the lok adalat would be a decree. the deeming provision in section 21 does not mean that an award passed by the lok adalat would be a decree passed in substitution of the decree already passed in the suit. it is net necessary that a matter coming up for consideration before the lok adalat should be a matter referred to by the civil court. any court, including the civil court could refer the matter to the lok adalat section 19(5) uses the expression 'court'. it does not say civil court definition of 'court' makes the position clear award of the lok adalat to be deemed to be a decree of the civil court, reference to the lok adalat shall be made by the civil court. in respect of matters referred to by other courts. section 21 provides that it shall be deemed to be 'an order of any other court'. when a decree was passed by the civil court and a reference was made to the lok adalat in the execution proceeding, there is no question of the award of the lok adalat being a decree of a civil court which would have the effect of substituting the decree already passed by the civil court. when a matter is settled between the parties before the lok adalat, after the matter was referred by the executing court to the lok adalat, the award passed therein would be an award which is executable as an order passed by the executing court en the basis of the decree already passed by the civil court. for that purpose, the award shall be deemed to be a decree. it only means that it can be enforced as a decree. let us take an example of a settlement or compromise between the parties before the civil court for example, in an execution petition, the parties arrive at a compromise and they file a compromise petition. that compromise, if accepted. would be an order in the execution petition and it can be enforced in the execution proceedings, that does net mean that the decree passed in the suit is wiped out or substituted by the order passed by the executing court. so far as the parties are concerned, they are bound by the order passed on the basis of the compromise filed by them before the executing court. that compromise is based on the decree and on the basis of a settlement armed at after the decree, by a compromise in an execution petition, it cannot be said that the suit is compromised as provided under rule 3 of order xxiii of the code of civil procedure, it can be treated as an adjustment as provided under rule 2 of order xxi of the code of civil procedure. if that is a result of a compromise between the parties at the execution stage before the civil court, there could be no difference if such a compromise is entered into by the parties before the lok adalat on a reference made to it by the executing court. the conclusion is irresistible that a compromise arrived at between the parties in an execution petition before the lok adalat is not a decree, though it shall be deemed to be a decree for certain purposes.8. let us examine the contention raised by the petitioner in another angle. in a given case, there may be several defendants. even if the decree was passed against all of them, the decree holder may think it fit to file execution petition against one or more of them and not against all of them. if such an execution petition is referred to the lok adalat and a compromise is entered into, the award would not be a decree in substitution of the decree passed against all the defendants. the compromise would not be binding on those judgment debtors who were not made parties to the execution petition. this example would indicate that an award passed by the lok adalat on a compromise entered into between the parties in the execution petition would not be in substitution of the decree passed by the trial court. but such an award would be binding on the parties to the compromise and the decree can be executed, in so far as they are concerned, only as per the terms of the compromise.9. disposal of an execution petition cannot be treated as disposal of the suit. the execution petition arises after a decree is passed in the suit the compromise entered into between the parties m an execution petition cannot be treated as a compromise in the suit. the procedure to be adopted, the issues/points to be decided and the decision to be rendered by the court. in a suit and in an execution petition are distinct and different. let us also think m yet another angle. article 136 of the limitation act provides for a period of limitation of twelve years for execution of a decree. there are categories of cases, for the execution of which. there is no period of limitation, if the contention raised by the petitioner is accepted, court fee levied in the suit could be refunded on a compromise entered into in en execution petition filed years after the date of passing of the decree. i am of the view that it cannot be done.10. under clause (i) of sub-section (5) of section 19 of the legal services authorities act, a compromise or settlement is contemplated in respect of 'any case pending before any court'. going by section 2(a) of the act, 'a case pending' may be a suit which is pending or an execution petition which is pending. a reference under sub-section (1) of section 20 of the legal services authorities act could be a case which is referred to in clause (i) of sub-section (5) of section 19. if so, it should be a case pending before the court. when an execution petition is pending before that court, reference to the lok adalat could be only of the execution petition and not of the suit which was already disposed of. the court must be satisfied, as provided under clause (ii) of sub-section (1) of section 20, that that matter to be referred to the lok adalat is an appropriate one to be taken cognizance of by the lok adalat. these provisions would indicate that when an execution petition is referred to the lok adalat, a compromise could be in respect of the disputes involved in the execution petition and not matters which are already settled as per the decree. the parties could however, agree in what manner the decree should be satisfied. but that does not have the effect of a compromise entered into in the suit.11. the expression 'in a case referred to it under sub-section (1) of section 20' and the expression 'the court fee paid in such case shall be refunded' occurring in section 21(1) of the legal services authorities act are to be read together, refund of court fee should be in respect of the case referred to the lok adalat. if an execution petition is 'the case referred' to the lok adalat,. court fee paid on the plaint cannot be refunded, as what is referred to the lok adalat is not the suit. at best, refund could only be of any court fee paid in the execution petition, if it is otherwise permissible under law.12. section 21 of the legal services authorities act provides for refund of court fee in the manner provided under the court fees act, 1870 (act 7 of 1870). sub-section (2) of section 2 of the kerala court fees and suits valuation act, 1959 reads as follows:2(2) where any other law contains provisions relating to the levy of fee in respect of proceedings under such other law, the provisions of this act relating to the levy of fee in respect of such proceedings shall apply subject to the said provisions of such other law.in view of sub-section (2) of section 2, the provisions of the kerala court fees and suits valuation act would apply in the matter of refund of court fee under sub-section (1) of section 21 of the legal services authorities act, section 69 of the kerala court fees and suits valuation act provides that when a suit or appeal is compromised or when a suit is decided solely on the admission of the parties without any investigation, one-half of the court fee paid on the plaint or memorandum of appeal shall be ordered by the court to be refunded to the parties by whom the same have been paid respectively. in the case on hand, the suit was decided and a decree was passed. no compromise was arrived at in the suit. there was no admission by the parties as provided in section 69. when an execution petition arising out of such a decree is compromised between the parties before the lok adalat, refund of court fee paid on the plaint cannot be made under section 69.13. in salem advocate bar association, t.n. v. union of india : air2005sc3353 , the supreme court held in paragraph 63 thus:63. regarding refund of the court fee where the matter is settled by the reference to one of the modes provided in section 89 of the act it is for the state governments to amend the laws on the lines of amendment made in the central court fees act by the 1999 amendment to the code. the state governments can consider making similar amendments in the state court fee legislations.no amendment has been made to the kerala court fees and suits valuation act as indicated by the supreme court in the aforesaid decision.14. in p.t. thomas v. thomas job (2005) 6 scc 478, under the heading 'benefits under lok adalat:' the supreme court held thus:19. benefits under lok adalat1. there is no court fee and if court fee is already paid the amount will be refunded if the dispute is settled at lok adalat according to the rules,2. the basic features of lok adalat are the procedural flexibility and speedy trial of the disputes, there is no strict application of procedural laws like the civil procedure code and the evidence act white assessing the claim by lok adalat.3. the parties to the dispute can directly interact with regular courts of taw.4. the award by the lok adalat is binding on the parties and it has the status of a decree of a civil court and it is non-appealable, which does not cause the delay in the settlement of disputes finally,in view of above facilities provided by 'the act' lok adalats are boon to the litigating public that they can get their disputes settled fast and free of cost amicably.15. the question decided in vasudavan v. state of kerala : air2004ker43 is whether the plaintiff is entitled to refund of the full court fee or only half the court fee. that question does not arise in the present case. the decision in sankunni somadhan v. vinodhini amma 2000 (1) klt 640 does not apply to the facts of the present case.16. the aforesaid discussion would lead to the conclusion that the writ petitioner/decree holder is not entitled to refund of the court fee paid on the plaint, on account of the compromise arrived at between the parties before the lok adalat on a reference made to it in the execution petition. the court below was right m holding so, however, i do not agree with the finding of the court below that section 21 of the legal services authorities act contemplates only a compromise or settlement in respect of a matter in a pending suit. the writ petition fails and it is accordingly dismissed.17. the laudable object sought to be achieved by the enactment of the legal services authorities act, 1987 is relevant while considering the question whether amendment of the kerala court fees and suits valuation act is necessary, as indicated in salem advocate bar association's case referred to above, though the court fees act, 1870 (act 7 of 1870} was amended the kerala court fees and suits valuation act is not suitably amended to promote settlement of cases before the lok adalats, by the code of civil procedure (amendment) act 1999 (act 46 of 1999), section 16 was inserted in me court fees act, 1870, which reads as follows:16. refund of fee:- where the court refers the parties to the suit to any one of the mode of settlement of dispute referred to in section 89 of the code of civil procedure, 1908 the plaintiff shall be entitled to a certificate from the court authorising him to receive back from the collector, the full amount of the fee paid in respect of such plaint,the government may consider the question in the larger interests of the litigating public and do the needful.the registry will send a copy of this judgment to the chief secretary to the government.