IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8261 of 2009(O)
1. AMBIKA RAJAN, W/O. RAJAN,
... Petitioner
Vs
1. BASHEERA BEEVI, W/O. NAJEEM,
... Respondent
2. NAJEEM, S/O. FAZULUDEEN,
For Petitioner :SRI.J.JAYAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :03/04/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 8261 OF 2009 O
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Dated this the 3rd April, 2009
JUDGMENT
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 filed 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
sale 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
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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 matter 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
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India ((2005) 6 SCC 344), P.J.Thomas v. Thomas Job ((2005) 6 SCC
478, Vasudevan v. State of Kerala (2003 (3) KLT 993) and Sankunni
Somadhan 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
in 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
service 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.”
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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 places. Section 19(5) of the Act reads as follows:
“19(5) A Lok Adalat shall have jurisdiction to
determine and to arrive at a compromise or settlement
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 shall 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 follows
“21. 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 shall be
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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,
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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 not 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 on 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
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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 not 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
arrived 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.
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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 in 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
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and different. Let us also think in 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 an 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
the 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 the 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
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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
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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
((2005) 6 SCC 344), 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
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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 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 while assessing the
claim by Lok Adalat.
3. The parties to the dispute can directly interact with
the judge through their counsel which is not possible in
regular courts of law.
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 Vasudevan v. State of Kerala (2003
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(3) KLT 993) 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 in 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
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Lok Adalats. By the Code of Civil Procedure (Amendment) Act, 1999 (Act
46 of 1999), Section 16 was inserted in the 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.
(K.T.SANKARAN)
Judge
ahz/