IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 33 of 2005()
1. STATE OF KERALA.
... Petitioner
2. THE EXCISE COMMISSIONER,
3. THE ASSISTANT EXCISE COMMISSIONER,
4. THE EXCISE INSPECTOR,
5. THE WELFARE FUND INSPECTOR, (ARRACK),
Vs
1. KURUVILA ULAHANNAN, NIRAPPUKKATTIL
... Respondent
2. K.J.SAJU, S/O.KURUVILA ULAHANNAN,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.C.C.THOMAS (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :05/06/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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F.A.O. No. 33 of 2005
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Dated this the 5th day of June, 2009.
JUDGMENT
Raman, J,
The appellants are the defendants in the suit O.S.
423 of 1994 on the file of the Additional Sub Court,
Thiruvananthapuram. The suit was one for declaration that the
plaintiff cannot be proceeded against for realisation of the kist
and excise duty being the licensee of of Group I arrack shop in
Kattakkada Range for the year 1993-1994 and for refund of a
sum of Rs.97,313/- with interest thereon and for injunction.
The first respondent was the successful bidder of the shop in
the year 1993-94 and the second respondent was the power of
attorney holder. The bid was for Rs.29,90,888/-. There was
dispute between the parties as to the amount of excise duty
remitted and whether the required quantity of rectified spirit
was lifted by the plaintiff or not. Though the State contended
that there was default in payment of excise duty, the plaintiff
FAO.33/2005. 2
contended otherwise. Needless to say, the suit was adjudicated in
favour of the plaintiff after setting the appellants ex-parte.
Applications thereafter filed for setting aside the ex-parte decree
and to condone delay also happened to be dismissed for default.
Hence that application was sought to be restored by filing yet
another set of applications. That was allowed and the applications
filed for setting aside the ex-parte decree and for condoning delay
were restored to file. Those applications were again dismissed for
default. The second application for restoration of the application
for setting aside the ex-parte decree was eventually dismissed.
That order is challenged in this appeal.
2. Normally this appeal would not have been
entertained by this court. However, this court admitted the case.
But during the pendency of the appeal respondent-plaintiff got the
benefit of an amnesty scheme and settled the dispute including
the disputed amount in respect of the year in question, thereby he
waived his benefit under the decree.
FAO.33/2005. 3
3. If so, nothing remains further pursuant to the decree
passed. In such circumstances, no purpose will be served by
allowing this appeal. Since there is no lis pending between the
parties, the question of restoring the suit does not arise. For these
reasons, the Appeal stands dismissed as infructuous.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.