The trial court decreed the suit with cost. It was challenged in the appeal by defendant. The appeal was allowed in part modifying the decree. The judgment of the appellate Court did not provide for cost either of the appellate court or trial court. The question is whether the plaintiff is entitled to the proportionate cost for the confirmed portion of the decree as granted by the trial Court, whether there is merger of the trial court decree regarding the cost with the appellate decree and if not whether the decree holder is entitled to realise the proportionate cost awarded by the trial court?

2. Petitioner is the decree holder. He instituted the suit seeking a decree for realisation of Rs.4,54,510/- with interest and cost. Suit was decreed on 10.4.02. Under Ext.P1 decree petitioner was allowed to realise it with interest at 6% on 2,26,011/- from 26.4.99 till realisation and costs of the suit. Respondent judgment debtor challenged the appeal in A.S.375/02 before this court. A Division bench of this court under Ext.P2 judgment modified the decree. Ext.P1 decree was modified as follows:-

“In the result, the judgment and decree of the court below are modified and a decree is given to the plaintiff for an amount of Rs.1,58,011/- with interest thereon at 12% per annum from 26.4.1999 till date of recovery.

The appeal is disposed of as above.”

Whether the cost awarded by the trial court was justified or to be set aside was not considered in Ext.P2 judgment. It was also not found that plaintiff is not entitled to the cost. True, Ext.P2 does not provide for payment of any cost either that of the appeal or the suit. Ext.P3 execution petitioner was filed for realisation of Ext.P1 decree as modified by Ext.P2. In Ext.P3 petitioner claimed the cost as awarded by the trial court. Respondent filed Ext.P4 objection contending that as judgment of this court in appeal do not provide for cost, petitioner is not entitled to claim cost in the E.P. Under Ext.P5 order executing court held that as the appellate decree do not provide for costs, decree holder is not entitled to the cost awarded by the trial court. It is challenged in this petitioner filed under Article 227 of Constitution of India.

3. Adv. Sri. S.V. Balakrishna Iyer, learned counsel appearing for the petitioner relying on the decisions of Supreme Court in State of Madras v. Madurai Mills Co. Ltd (AIR 1987 SC 681) and a learned single Judge of High Court of Orissa in Dambarudhar Bhunya v. Muralidhar Bhunya (AIR 1986 Orissa 15) argued that there is no merger of the cost part of the decree of the trial court with the decree of the appellate Court and as the cost awarded by the trial court was not set aside, varied or modified by the appellate Court, decree holder is entitled to the proportionate cost of the decree as confirmed in appeal and therefore Ext.P5 order is to be set aside. Learned counsel appearing for respondent relying on the Full Bench decision of this Court in Kannan v. Narayani (1980 KLT 9) and Division Bench decision in Saheeda v. Hamelatha (2002 (3) KLT 301) and that of the Apex Court in Kunhayammed v. State of Kerala ((2000) 6 SCC 359) argued that as Ext.P2 decree was challenged in appeal and the decree was modified by the appellate Court, the decree of the trial court merged with the decree of the Appellate Court and therefore the only executable decree is that of the appellate Court and as the appellate Court decree did not provide for any cost, executing court rightly held that petitioner is not entitled to claim the cost awarded by the trial court and the petition is not maintainable.

4. Section 35 of Code of Civil Procedure deal with costs. Under sub section (1) subject to such conditions and limitations as may be prescribed, and to the provisions or any law for the time being in force, the costs of an incident to all suits shall be in the discretion of the court. The court shall have full power to determine by whom or out of what property and to what exten