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Mangilal Vs. J. Chandramouli Sastry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 27 of 1969
Judge
Reported inAIR1971Kant181; AIR1971Mys181; (1971)1MysLJ101
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 1
AppellantMangilal
RespondentJ. Chandramouli Sastry
Appellant AdvocateAppa Rao, Adv.
Respondent AdvocateManohar Rao Jahagirdar, Adv.
DispositionAppeal dismissed
Excerpt:
.....132 and in b. 2. it is no doubt true that the, language employed in the decree in question is not quite happy. it would have been better if the trial court had looked into the form prescribed for the purpose before drafting the decree......to the decree. the contention of sri appa rao is that the decree is not in conformity with the form prescribed in the code of civil procedure for the preparation of a money decree, viz.. form no. 1 in appendix d of the code of civil procedure, the prescribed form reads thus:'this suit coming on this day for final disposal before .....in the presence of.....for the plaintiff and of.....for the defendant, it is ordered and decreed that.....and the sum of rs.....be paid by the.....to the..... on account of the costs of the suit, from this date to the date of realisation..... per cent per annum. given under my hand and the seal of the court, this .....day..... judge.'the difference between the decree that has been drawn up in this case and the prescribed form is that instead of the words.....
Judgment:

E.S. Venkataramaiah, J.

1. The only ground urged by Sri Appa Rao, the learned Advocate for the appellant in this appeal is that the decree passed on 24-2-1968 in O. S. No. 163/1 of 1964 on the file of the Munsiff at Shorapur was not executable. The decree in question reads as follows:--

'It is ordered and decreed that the defendant is liable to pay Rs. 63415-00 along with interest at the rate of Rupees 3% per annum from the date of the suit till the realisation of the amount to the plaintiff.

Given under my hand and the seal the Court this 24th day of February, 1968.

Sd/-

Munsiff. Shorapur.'

A memorandum of cost is also attached to the decree. The contention of Sri Appa Rao is that the decree is not in conformity with the form prescribed in the Code of Civil Procedure for the preparation of a money decree, viz.. Form No. 1 in Appendix D of the Code of Civil Procedure, The prescribed form reads thus:

'This suit coming on this day for final disposal before .....in the presence of.....for the plaintiff and of.....for the defendant, it is ordered and decreed that.....and the sum of Rs.....be paid by the.....to the..... on account of the costs of the suit, from this date to the date of realisation..... per cent per annum. Given under my hand and the seal of the Court, this .....day..... Judge.'

The difference between the decree that has been drawn up in this case and the prescribed form is that instead of the words 'be paid by the defendant' to be found in the form the words 'the defendant is liable to pay' have been employed in the decree. Sri Appa Rao contends that the decree is merely declaratory in nature and if the plaintiff wants to recover the money due to him, he has to file one more suit on the basis of this decree on the ground that there is no order to pay. The word 'Decree' is defined in Section 2 (2) of the Code of Civil Procedure which is as follows :--

' (2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it. conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.'

(The rest of the definition is not relevant for the purpose of this case). The question is whether the decree in question falls within the definition of the word 'decree'. Sri Appa Rao admits that it is a decree, but, it is not executable because it is not stated in the decree that the defendant shall pay the plaintiff the amount mentioned therein. Even though an executing court may not be entitled to go behind the decree, it is entitled to construe the decree in order to give effect to it. The relevant part of the decree reads as follows:

'It is ordered and decreed that the defendant is liable to pay Rs. 63415-00 along with interest at the rate of Rs. 3% per annum from the date of the suit till the realisation of the amount to the plaintiff.'

It is not disputed that this is a decree passed in O. S. No. 163/1 of 1964. From the decree it is to be seen that the suit was for the rendition of accounts filed against the defendant who is the appellant before me. In that suit ultimately this decree, which has been extracted above, has been passed. On a reasonable construction of the decree that has been passed in this case, I hold that the court did make a decree directing the defendant to pay the plaintiff a sum of Rs, 63415-00 along with interest as directed in it and the court could not have had any other intention in making the decree in question. Mr. Appa Rao has not been able to show me any authority in which a case similar to the present one came up for decision. Mr. Appa Rao has relied on two decisions, viz., the decision in Mt. Mongi v. Mahabir Pra-sad, AIR 1951 Punj 132 and in B.K. Thapar v. Sudhir Kumar. AIR 1966 J. and K. 13. In the Punjab case, the question for determination was whether a decree for sale of the mortgage property which was not in conformity with Order XXXIV, Rule 5 of the Code of Civil Procedure was in order and whether pursuant to the said decree the executing court could proceed to sell the property and recover the money due to the decree-holder. The decree in question in that case has been extracted in the judgment and it is to be noticed that the decree that came up for the determination before that court differed in substance from what a decree for sale in a suit on a mortgage should contain. It did not contain any reference to the period within which the defendant could pay the money decreed in the suit and in fact no such time was fixed for the said purpose. The case on hand is not therefore one similar to the case decided by the Punjab High Court. The next decision of the High Court of Jammu and Kashmir relates to a decree which was passed on a compromise between the parties to a suit in which a fresh lease in respect of a certain item of property was created with a condition that the lessee could have the renewal of the lease at the termination of the period originally prescribed. The High Court of Jammu and Kashmir had no difficulty in coming to a conclusion that the compromise decree was declaratory in character and only created a fresh lease between the parties. It, therefore, held that the decree was not executable. The present decree, as already stated, is not one in which any new rights have been created between the parties for the first time and held by the High Court of Jammu and Kashmir in the decision referred to above.

2. It is no doubt true that the, language employed in the decree in question is not quite happy. It would have been better if the trial court had looked into the form prescribed for the purpose before drafting the decree. That however, does not come in the way of the decree-holder in this case in executing the decree against the judgment-debtor and recovering the money found to be due from him.

In the result, this appeal fails and it is dismissed. No costs.

Mr. Appa Rao, the learned Advocate for the appellant prays that six months' time may be given to the appellant to pay the decretal amount. He is granted six months time to do so.


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