Dismissed

P.L.Navis v. the Canara Bank

Kerala HC15 Jul 2009CRP/331/2009

Case brief

AI extract

What is this about?

Civil revision petition challenging a Sub Judge's order allowing a decree holder to withdraw a deposited amount without filing an execution petition. The court dismissed the revision, holding that disputes between judgment debtors not involving the decree holder fall outside the ambit of Section 47 CPC.

What did the court decide?

The civil revision petition filed by P.L. Navis is dismissed; the impugned order of the Sub Judge upholding the right of the decree holder to withdraw deposited amount is affirmed.

P.L.Navis Vs the Canara Bank — Execution and Attachment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN

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WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931

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CRP.No. 331 of 2009()

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-------------------------------(AGAINST THE ORDER IN E.A.NO.350/09 IN E.P.NO.151/08 IN O.S.NO.708/03 DTD. 8/04/2009 OF THE PRINCIPAL SUB COURT, ERNAKULAM)

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REVISION PETITIONER(S): IST RESPONDENT/IST J.D.1ST DEFENDANT:

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--------------------------------------------------------------------------------------------------------P.L.NAVIS, PROPRIETOR, INDIAN CAPS INDUSTRIES, C/O.M.A.BANKERS, PULLEPPADY JUCTION, ERNAKULAM, RESIDING AT PEYOLI HOUSE, KAKKANADU, COCHIN-30.

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BY ADV. MR.BABU CHERUKARA

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RESPONDENT(S): PETITIONER/D.H.PLAINTIFF.: RESPONDENTS:RESPONDENTS/J.Ds 2 TO 4/DEFENDANTS 2 TO 4:

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-------------------------------------------------------------------------------------------------1. THE CANARA BANK, TRIPUNITHURA BRANCH, NADAMA VILLAGE,NADAMA DESOM, KANAYANNUR TALUK, REP.BY IT'S CHIEF MANAGER.

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2. SOPHY JOHN,ERINJERI, 61 YEARS, W/O.LATE JOHN ERINJERY, ERINJERY HOUSE, BEENA NAGAR, EDAPPALLY, KOCHI-682 024.

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3. SUNILKUMAR, S/O.LATE JOHN ERINJERY ERINJERY HOUSE, -DO- -DO-

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4. NARIES JOHN, S/O.LATE JOHN ERINJERY, ERINJERY HOUSE, -DO- -DO-

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R1 BY ADVS. MR.M.R.GOPALAKRISHNAN NAIR, SMT.PRIYANKA PRASAD R2 TO R4 BY ADVS.MR.JOHNSON ABRAHAM, MR.S.GOPINATHAN, MR.NELSON ABRAHAM.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Kss

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S.S. SATHEESACHANDRAN, J.

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C.R.P. No. 331 OF 2009

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Dated this the 15^th day of July, 2009

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O R D E R

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The judgment debtor in EP.No.151/08 in OS.No.708/03 on the file of the Sub Court, Ernakulam is the petitioner. The 1^st respondent, a nationalised bank, advanced a loan on the security of a mortgage to the petitioner. The loan having been defaulted, the above suit was filed for realisation of the dues against the petitioner and his guarantors to the transaction. A decree was passed in favour of the 1^st respondent allowing it to realise the sum with interest from the first petitioner and others, the defendants in the suit, and their assets, jointly and severally charging that sum on the plaint property. After getting such a decree, the 1^st respondent initiated revenue recovery proceedings for realisation of the dues as if it were an arrear on public revenue on land as contemplated under the Revenue Recovery Act. The petitioner challenged the revenue recovery proceedings by filing a writ petition, which was dismissed. In the appeal preferred against that judgment, the petitioner was directed to deposit the entire decree amount before the execution court as a condition precedent for

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lifting the attachment ordered under the revenue recovery

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CRP.331/09

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: 2 :

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proceedings. His right to raise objections, whatever that be, in the execution proceedings was also reserved. Accordingly, the petitioner deposited the decree amount in the execution court and got the revenue recovery proceedings against his personal properties lifted. The 1^st respondent then filed a cheque application for realisation of the amount deposited by the petitioner which was objected by him. The learned Sub Judge, after hearing both sides, passed the impugned order holding that the decree holder is entitled to get release of the amount in deposit for which it need not file an execution petition. Propriety, legality and correctness of that order is impeached in the present revision invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.

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I heard the counsel on both sides. The learned counsel for the petitioner submitted before me that the decree being one charged on the property, the decree holder has to first of all proceed against that property and then only against the person or other assets of the judgment debtors. It is the further submission of the counsel that title of the property which was given as security

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and which belong to the other JDs was with the petitioner as he

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CRP.331/09

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: 3 :

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had advanced its price to the guarantors before it was furnished as security for the loan transaction. Those questions deserve to be agitated and resolved in the execution proceedings, is the submission of the learned counsel for the judgment debtors. I do not find any merit in the submissions since the execution court is not competent to go into such questions, a dispute between the judgment debtors in which the decree holder is not interested in the execution proceedings. Section 47 of the Code of Civil Procedure contemplates determination of disputes relating to the execution, discharge and satisfaction of the decree, and it is abundantly clear such questions alone can be gone into for the purpose of the section. Such being the position of law, a dispute as between the judgment debtors in which the decree holder is not at all interested cannot be considered as one arising for determination by the execution court. I do not find any impropriety, illegality or jurisdictional infirmity in the order passed by the court below, and the revision is dismissed.

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(S.S. SATHEESACHANDRAN, JUDGE)

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aks

P.L.Navis v. the Canara Bank

Case brief

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P.L.Navis v. the Canara Bank

Case brief

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