Partly allowed

U.O.I. v. Vikas Enterprises.

Punjab & Haryana HC14 Dec 2012CR/1953/1997

Case brief

AI extract

What is this about?

This revision petition challenged an executing Court's order allowing recovery of Rs. 2.57 lakhs from an irregular ex-parte decree that only definitively decreed up to Rs. 1 lakh. The High Court held the execution order beyond the statutory limit under Section 47 CPC was erroneous and partly allowed the revision.

What did the court decide?

The impugned order granting relief to the decree-holder to recover a total sum of Rs. 2,57,000/- is set aside.

U.O.I. Vs Vikas Enterprises. — Execution and Attachment | Punjab & Haryana HC (2012)

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CR No. 1953 of 1997

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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CR No. 1953 of 1997 Date of decision: 14-12-2012

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Union of India and others ... Petitioners.

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Versus.

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Vikram Enterprises … Respondent

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CORAM:- HON’BLE MR. JUSTICE M. JEYAPAUL

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1. Whether the judgment should be reported in the Digest ?.

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...

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Present: Mr. Puneet Jindal, Advocate, for the appellant

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None for the respondent

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M. JEYAPAUL, J :

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The present revision is directed against the order passed by the executing Court holding that the decree-holder was entitled to recover a sum of Rs.2,57,000/- from the judgment-debtors.

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The suit was basically filed by the decree-holder/respondent herein for mandatory injunction directing the defendant-revision petitioners to release the securities and make payment of bills for the work done in respect of the 21 petty works of ordinary repairs and maintenance as well as new works, additions and alterations to existing structure and emergent works costing upto Rs.50,000/- in Zone No. 1/89-90.

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The defendants coolly remained ex-parte. The trial Court having examined the plaintiff as PW-14 and getting 14 documents exhibited

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CR No. 1953 of 1997

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through him, passed the following strange judgment:

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“ ... ... ... Thus, the suit of the plaintiff is decreed

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ex-parte with costs as prayed for with the observations that in case the amount recoverable by the plaintiff from the defendants is found to be within the range of Rs. One lac, the plaintiff shall be liable to recover the same as having affixed the court-fee upto the amount of Rs. One lac and for the amount beyond that the plaintiff shall seek the relief in accordance with law.”

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The aforesaid judgment passed by the trial Court would disclose that the trial Court was not certain as to the exact amount liable to be paid by the defendants. As though some other Court was going to determine the actual amount payable by the defendants to the plaintiff, the trial Court had left that issue open for determination. Very curiously, the trial Court having allowed the suit to be decreed with costs as prayed for, came out with an observation that the plaintiff should seek relief with respect to the claim beyond Rs. One lac only in accordance with law. Such an observation made by the trial Court has really confounded the confusion which pervaded the decree drafted, based upon such a judgment.

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Coming to the orders passed by the executing Court, I again find that a very strange method has been adopted by the executing Court while disposing of the objections raised by the judgment-debtors under Section 47 of the Code of Civil Procedure. The executing Court virtually allowed the objections raised under Section 47 of the Code of Civil Procedure but at the same time, it kept the execution petition alive and

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CR No. 1953 of 1997

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embarked upon a regular suit trial and determined the amount actually recoverable by the plaintiffs from the defendants. In fact, the revision petitioners chose not to challenge the order passed by the executing Court on the objections raised by them, invoking the provisions under Section 47 of the Code of Civil Procedure. They have challenged only the subsequent order passed by the executing Court determining the amount which was actually payable by the defendants to the plaintiffs.

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Learned counsel appearing for the revision petitionersjudgment-debtors would submit that the executing Court had traversed beyond the scope of execution proceedings. It is his further submission that the executing Court virtually misinterpreted the decree which was put to execution by the decree-holder. Had the executing Court properly read the decree passed, it would have restricted the execution of the decree upto the value of Rs. One lac. Therefore, it is his submission that the decreeholder is not entitled to recover any amount beyond Rs. One lac in terms of the decree passed by the trial Court.

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In my considered view, the trial Court has passed an ex-parte judgment in a very casual manner. It is true that the plaintiff had not specifically mentioned the amount due and payable by the defendants to it but having entertained the suit filed by the plaintiff and recorded evidence in absentia of the defendants, the trial Court should have embarked upon determining the actual amount due and payable by the defendants. The casual approach of the trial Court had made the executing Court to commit yet another patent error. The executing Court was in a fix as to whether the objections raised under Section 47 of the Code of Civil Procedure could be sustained and whether the amount actually liable to be paid by the efendants

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CR No. 1953 of 1997

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could be ascertained in execution proceedings. At last, the executing Court chose to pass an inconsistent order allowing the objections under Section 47 of the Code of Civil Procedure, determining the amount due and payable by the defendants actually traversing beyond the scope of the decree passed by the trial Court.

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If the decree passed by the trial Court directs payment of some amount by the defendants to the plaintiff, of course, the executing Court in the garb of Section 47 of the Code of Civil Procedure could determine as to what amount is actually due and payable after giving due weight to the plea of discharge/satisfaction set up and established by the judgment-debtors. But in the instant case, the trial Court was not certain as to what was the amount actually due and payable by the defendants. At the most, we could conclude that the trial Court had decreed the suit only upto Rs. One lac and had directed the parties concerned to seek remedy in accordance with law if the amount payable exceeded Rs. One lac.

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In a suit where money claim has been made, the trial Court is bound to determine what actually was the amount payable by the defendants to the plaintiff. Only in a case where there is a strong plea of discharge/satisfaction made by the judgment-debtors in the application filed under Section 47 of the Code of Civil Procedure, the executing Court has the jurisdiction to determine what actually is the amount payable by the judgment-debtors after conducting a roving enquiry as to the plea of discharge/satisfaction set up by the judgment-debtor as against the decreeholder.

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In the instant case, the suit was filed way-back on 2.9.1992. The execution application based upon such a irregualr decree was filed by

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CR No. 1953 of 1997

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the decree-holder way-back on 4.2.1995. In my considered view, it would be unjust to direct the decree-holder to file yet another suit specifying the amount payable by the defendants to it at this distance of time. Therefore, atleast the decree very reluctantly passed by the trial Court to the tune of Rs. One lac will have to be honoured and execution to such sum will have to be effected as against the judgment-debtors.

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In view of the above, holding that the decree-holder is entitled to recover only a sum of Rs. One lac under the decree passed by the trial Court, the impugned order granting relief to the decree-holder to recover a total sum of Rs.2,57,000/- stands set aside. In terms thereof, the revision petition is partly allowed.

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December 14, 2012 JS

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( M. JEYAPAUL ) JUDGE

U.O.I. v. Vikas Enterprises.

Case brief

What is this about?

What did the court decide?

U.O.I. v. Vikas Enterprises.

Case brief

What is this about?

What did the court decide?

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