K.T. SANKARAN,J.
The Regular First Appeal is filed by the defendant in O.S.No.768/1996 on the file of the Court of the II Additional Subordinate Judge, Thiruvananthapuram. The suit was filed for specific performance of an agreement for sale of the plaint schedule property. The trial Court decreed the suit and directed the plaintiff to deposit the balance sale consideration of ₹2,25,000/- within four months from the date of the decree after giving notice to the defendant. The defendant was directed to execute and register the sale deed in respect of the plaint schedule property in favour of the plaintiff within one month from the date of deposit. In this appeal, this Court granted an interim stay of execution of decree passed by the trial Court.
2. When the appeal came up for hearing, a Division Bench of this Court passed an order dated 9th day of October, 2014, which reads as follows:
“This appeal is preferred challenging a decree for specific performance. The sole defendant in the suit is the appellant.
2. The respondent filed the suit alleging that the appellant has agreed to sell the plaint schedule property for a total sale consideration of Rs.2,58,000/-, after receiving a sum of Rs.33,000/- towards advance sale consideration and did not execute the sale deed as agreed. The court below as per the decree and judgment impugned in this appeal, directed the respondent to deposit the balance sale consideration of Rs.2,25,000/- in court and directed the appellant to execute a sale deed in respect of the plaint schedule property in favour of the respondent. Consequent directions were also issued.
3. Pursuant to the decree, the respondent has deposited the balance sale consideration of Rs.2,25,000/- before the court below and as per order dated 28/6/2006, this Court directed transfer of the said amount to State Bank of Travancore, Treasury Branch, Thiruvananthapuram, to be retained as a Fixed Deposit. It is submitted that pursuant to the direction issued by this court on 28/6/2006, the amount was transferred to the bank and the same is retained by the bank as a fixed deposit.
4. Today, when the case was taken up for hearing, the learned counsel for the appellant submitted that he is prepared to return the advance sale consideration received from the respondent viz. 33,000/- and pay a further sum of Rs.1,00,000/- to the respondent by way of an amicable settlement of the dispute. The suggestion made by the learned counsel for the appellant was acceptable to the respondent, who was personally present in Court. In the said circumstances, we permit the appellant to pay the amount offered by him by way of a Demand Draft to the respondent on or before 18/11/2014.
Post on 19/11/2014.”
3. The learned counsel for the appellant filed a memo dated 14th November, 2014 stating that a sum of ₹1,33,000/- was sent by way of Demand Drat to the respondent/plaintiff by registered post, acknowledgment due on 14.11.2014. The postal receipt and the photocopy of the Demand Draft have been produced along with memo.
4. The learned counsel for the respondent/Plaintiff submitted that he has no instructions as to whether the Demand Draft was received by the respondent/plaintiff.
5. In the light of the order dated 9th October 2014 as well as memo dated 14th November 2014, the appeal is disposed of as follows:
i) The judgment and decree passed by the Court below are set aside and the suit is dismissed.
ii) The amount of ₹2,25,000/- deposited by the respondent/Plaintiff, which was later transferred to the State Bank of Travancore, Treasury Branch, Thiruvananthapuram, shall be paid to the respondent/plaintiff.
iii) Since the matter is settled in terms of the compromise between the parties, half of the Court fee paid on the Memorandum of Regular First Appeal shall be refunded to the appellant/defendant.
iv) In case, it is found that the respondent/plaintiff has not received the Demand Draft sent by the appellant/defendant, the plaintiff shall be entitled to file a memo in this R.F.A. within one month, in which event the R.F.A will stand restored to file.
K.T. SANKARAN, JUDGE.
acd P.D. RAJAN, JUDGE.