Under challenge is Ext.P3 judgment in O.S.131 of 2013 before the Sub Court, Mavelikara. The suit was one for specific performance. Plaint schedule property was agreed to be sold for Rs.13,00,000/- and advance amount of Rs.9,00,000/- was paid. Defendant defaulted in performing the agreement and suit was laid. He remained ex parte. Petitioner filed an affidavit to the effect that he is rescinding the contract and he seeks decree only in respect of advance amount paid. In spite of the fact that the contract has been rescinded and the plaintiff confines his relief for return of advance amount, the court passed the following decree:
“In the result, suit is decreed as follows:
1. Specific performance of Ext.A1 agreement is granted.
2. The plaintiff is ordered to deposit the balance sale consideration before this court within one month from today with notice to the defendant.
3. The defendant is ordered to execute sale deed with respect to the plaint schedule property in favour of the plaintiff as per Ext.A1 within two months from the date of deposit of sale consideration by the plaintiff, failing which plaintiff shall be entitled to get the sale deed executed and the property delivered through court.
4. The plaintiff is allowed to realize the cost of the suit from the defendant.”
2. Learned counsel appearing for the petitioner pointed out that in the light of the affidavit filed especially in the light of the fact that the prayer for specific performance has been given up, the court below was not justified in passing specific performance decree by depositing balance sale consideration and directing the defendants to execute the sale deed. It is an error apparent on the face of record and it is totally illegal and therefore, the supervisory jurisdiction of this Court may be exercised. In support of his contention, the learned counsel relied on the decisions reported in Mohammed Shabeer v. Sukumaran (2012 (3) K.L.T. 247), Basheer M. Picha v. Indian Bank (2013(2) K.L.T. 951) and Achuthanandan V.S. v. State of Kerala (2013 (3) KHC 6).
3. Learned counsel for the respondent relied on the decision reported in Rajni Rani v. Khairati Lal (2014(4)( KLJ 527) and contended that rightly or wrongly a decree has been passed and the proper remedy is to file an appeal against the decree.
4. It is no doubt true that a decree has been passed. Normally this Court would direct the party concerned to file an appeal. However, the decree now passed is totally overlooking the statement in the affidavit wherein the plaintiff has categorically stated that he is rescinding the prayer for specific performance and he is seeking only return of advance amount. It is without referring to the affidavit that the decree has been passed. It is contrary to the provisions of the relevant Act. Under such circumstances, relegating the petitioner to file an appeal would be a futile exercise.
In the result, this Original Petition is allowed, the impugned decree is set aside and the matter is remanded to the trial court for passing a decree in terms of the affidavit filed by the petitioner. The parties shall appear before the trial court on 15.12.2014.
P. BHAVADASAN, JUDGE sb.