1. The plaintiff in O.S.No.157/1994 on the file of the Principal Munsiff Court, Kasaragod is the appellant herein. The suit was one filed by the plaintiff/ appellant herein for permanent prohibitory injunction restraining the sole defendant, his men and his agents from trespassing into any portion of the plaint A schedule property or forming a new road or widening the existing road or otherwise interfere with the plaintiff's peaceful possession and enjoyment thereof. During the pendency of the suit, the original defendant died and additional defendants 2 to 7 were impleaded as his legal heirs as per order in I.A. No.1813/1994. Thereafter, additional 8th defendant was also impleaded as one of the sons of the original deceased defendant as per order in I.A. No.488/1995.

2. The original defendant entered appearance and filed written statement denying the allegations and also contended that the plaintiff had no cause of action to file this suit and he had constructed the road in the land covered by exchange deed dated 02.11.1992 and he had got the right to widen the same as well. Plaintiff had no cause of action to file the suit against the defendants and prayed for dismissal of the suit with cost and also compensatory cost under Section 35(A) of Code of Civil Procedure.

3. A commission was taken and commissioner filed reports and plans. The defendant also filed application for injunction against the plaintiff and injunction was granted against him and since that was violated, the defendant filed a petition for prosecution for violation of injunction under Order 39 Rule 2(A) of Code of Civil Procedure and that was tried and he was found guilty of violation of injunction and he was directed to be detained in civil prison and also his property was attached. The appellant herein filed CMA No.27/97 before the District Court and the District Court allowed the appeal in part, confirming the finding on the question of violation of injunction but set aside the order detaining the appellant in civil prison but confirmed the order of attachment passed. In the meantime, the plaintiff filed memo dated 12.2.1998 not pressing the suit, as he had mentioned that at present there was no threat of any trespass. Supplemental defendants filed objection to the same stating that the memo was frivolous, vexatious and the suit filed itself was frivolous one and plaintiff by prosecuting the case caused lot of loss for the defendants and they pressed for heavy loss on the plaintiff in case the suit has to be dismissed, on the basis of the memo.

4. It is on that basis, the court below dismissed the suit as not pressed by judgment dated 31.07.1998 stating that since the prosecution for violation was a matter to be considered separately, the memo was accepted and suit was dismissed as not pressed. There was nothing mentioned about the order as to costs, but in the decree it was mentioned that “ there is no order as to cost”. Dissatisfied with this portion of the decree, defendants filed appeal before the District Court and it was made over to Sub Court, Kasaragod, where it was numbered as A.S.87/98 and the learned Sub Judge analysed the circumstance of the case in detail and allowed the appeal allowing cost of the defendants throughout and also awarded Rs.1000/- as compensatory cost. Aggrieved by the same, the present second appeal has been filed by the plaintiff before this Court.

5. While admitting the appeal, this Court has accepted the substantial questions of law raised in the appeal memorandum for consideration, which read as follows:-

“A. Whether a “decree” drawn up pursuant to a judgment of court dismissing a suit as “not pressed” is a decree as defined in Section 2(2) of C.P.C.? As if not will an appeal under Section 96 of C.P.C. lie against such decree.

B. As not the Lower Appellate Court committed an error of law in entertaining the appeal; when the subject matter of the challenge in the appeal is not supported by payment of Court Fee.

C. Will a