The High Court allowed the revision petition and set aside the executing court's order directing a bank to refund Rs.1,00,000/-, holding it was patently perverse and illegal to order such a refund when the relief was neither claimed nor granted in the original decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CR No.139 of 2011
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CIVIL REVISION NO.139 OF 2011 DATE OF DECISION: FABRUARY 16, 2012
State Bank of Bikaner & Jaipur
.... Petitioner
Versus
Harmail Singh
.... Respondent
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
PRESENT: Mr. Umang K. Khosla, Advocate for the petitioner.
Mr. S. S. Rangi, Advocate for respondent.
L.N. MITTAL, J. (ORAL)
State Bank of Bikaner & Jaipur (judgment debtor) has filed this revision petition under Article 227 of the Constitution of India impugning order dated 20.07.2010 (Annexure P-6) passed by executing Court i.e. learned Additional Civil Judge (Senior Division), Amloh on application filed by respondent-decree holder Harmail Singh under Order 21 Rule 32 read with Section 151 of the Code of Civil Procedure (in short, CPC).
Harmail Singh-respondent (plaintiff) filed suit against petitioner herein as defendant No.4 besides impleading Balbir Singh, his wife Ranjit Kaur and M/s. Rosha Ispat Udyog as defendants No.1 to 3. It appears that case of plaintiff was that defendant No.3 M/s. Rosha Ispat Udyog was partnership firm of plaintiff and defendant No.1 vide partnership deed dated 01.09.2000. Vide retirement deed dated 12.09.2000, defendant No.1 became sole continuing partner/proprietor of the said firm, which had taken loan from defendant No.4petitioner. The plaintiff sought declaration that defendant No.1-Balbir Singh is bound by the partnership deed dated 01.09.2000 and retirement deed dated
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12.09.2000 and accordingly defendant No.1 is the sole continuing partner/proprietor of defendant No.3-firm and is liable to discharge the loan taken by the firm from defendant No.4. Injunction was also claimed restraining defendant No.4 from recovering any loan amount of the said firm from the plaintiff. The suit instituted on 05.05.2001 was decreed ex parte vide judgment and decree dated 10.04.2004 Annexure P-2.
Respondent-decree holder filed execution application under Order 21 Rule 32 read with Section 151 CPC alleging that petitioner-Bank and its Manager Amir Chand (respondent No.2 in the execution petition) committed contempt of Court by disobeying judgment and decree dated 10.04.2004 Annexure P-2 by transferring the amount of Rs.1,00,000/- (Rupees one lac) deposited by respondent-decree holder in sundry account to the CC limit account of the aforesaid firm-defendant No.3.
Petitioner herein along with its Manager in their reply alleged that decree holder respondent had entered into compromise with the Bank as partner of the firm on 05.02.2002 pursuant to application for compromise moved by him on 01.08.2001 and accordingly the amount of Rs.1,00,000/- (Rupees one lac) was adjusted in CC account of the firm on 26.03.2002 and thereafter the petitionerBank filed suit for recovery of balance amount after adjusting the amount of Rs.1,00,000/- (Rupees one lac). Averments in the execution application that the decree has been disobeyed, were controverted.
Respondent-decree holder in his rejoinder alleged that although proceedings for compromise were going on but no compromise took place. The decree holder had deposited the amount in separate account with the understanding that if compromise was accepted, then the amount be withdrawn, but the bank, without consent of the decree holder, withdrew the amount illegally and transferred it to CC account of the firm.
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Learned executing Court vide impugned order Annexure P-6 found that petitioner herein and its Manager had not violated the decree and had not committed any contempt of Court, but nevertheless the executing Court held that the amount of Rs.1,00,000/- (Rupees one lac) was not adjusted by the petitionerBank while filing suit for recovery of due amount. In view of this finding, petitioner-Bank has been directed to refund the amount of Rs.1,00,000/- (Rupees one lac) to petitioner-decree holder. Feeling aggrieved, instant revision petition has been filed by the Bank.
I have heard counsel for the parties and perused the case file.
Counsel for the petitioner contended that the amount of Rs.1,00,000/(Rupees one lac) had been adjusted long before the decree dated 10.04.2004 was passed and even the executing Court has held that the said decree was not violated. It was contended that Bank filed the suit for recovery of balance amount after adjusting the amount of Rs.1,00,000/- (Rupees one lac), which had been deposited by the respondent-decree holder and which was transferred to CC account of the firm.
Counsel for respondent-decree holder, however, contended that the aforesaid amount of Rs.1,00,000/- (Rupees one lac) was not adjusted when the Bank filed suit for recovery of due amount and, therefore, the executing Court has rightly ordered the refund of said amount of Rs.1,00,000/- (Rupees one lac) to respondent-decree holder.
I have carefully considered the rival contentions. As per submissions of counsel for both the parties, respondent-decree holder had deposited amount of Rs.50,000/- (Rupees fifty thousand) in March 2001 i.e. even before the institution of the suit on 05.05.2001 in which decree dated 10.04.2004 was passed, whereas balance amount of Rs.50,000/- (Rupees fifty thousand) was deposited in August 2001 i.e. during pendency of the said suit. In the said suit, relief of refund of the
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said amount was neither claimed nor granted by judgment and decree Annexure P- 2. The amount of Rs.1,00,000/- (Rupees one lac) had been adjusted in CC account of the firm on 26.03.2002 i.e. before passing of judgment and decree dated 10.04.2004 Annexure P-2. Consequently, question of disobedience of the said decree by adjustment of the said amount, did not arise when the amount had been adjusted even before the passing of the decree.
As regards refund of the amount as ordered by the executing Court, without going into the question as to whether the said amount was accounted for or not by the petitioner-Bank while filing suit for recovery of due amount, suffice to notice that in execution of judgment and decree dated 10.04.2004, refund of the said amount to respondent-decree holder could not be ordered when the said relief was neither claimed in the suit nor granted by judgment and decree dated 10.04.2004. Impugned order of the executing Court directing refund of the said amount by petitioner-Bank to respondent-decree holder is patently and manifestly perverse and illegal and also suffers from jurisdictional error because the executing Court exercised jurisdiction which did not vest in it to order refund of the amount in execution of the decree when the decree did not provide for any such relief.
In view of the aforesaid, the instant revision petition is allowed. Impugned order Annexure P-6 passed by the executing Court is set aside and execution application moved by respondent-decree holder under Order 21 Rule 32 read with Section 151 CPC stands dismissed.
(L. N. MITTAL) JUDGE
16.02.2012 'raj'
3 issues framed by the court
Whether the executing court had jurisdiction to order refund of an amount that was not claimed or granted in the underlying decree and judgment.
Whether the execution court's order directing the petitioner to refund a specific sum in the execution proceedings was patently perverse and illegal.
What is the proper course of action when the lower court directs a refund in execution proceedings where the relief was not sought in the original suit?
3 provisions across 3 enactments
State Bank of Bikaner & Jaipur
Harmail Singh
L. N. MITTAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
