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State of Andhra (Now Andhra Pradesh) Vs. Penumecha Somaraju and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 409 to 413 of 1954
Judge
Reported inAIR1959AP165
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35 and 82; Code of Civil Procedure (CPC) (Amendment) Act, 1956
AppellantState of Andhra (Now Andhra Pradesh)
RespondentPenumecha Somaraju and anr.
Appellant AdvocateGovernment Pleader, Adv.
Respondent AdvocateG. Chandrasekhara Sastry, ;M. Suryanarayana Murthy, ;Sankara Sastry, ;T. Veerabhadraiah and ;M.A. Narasaiah Chaudhary, Advs.
DispositionAppeals allowed
Excerpt:
.....1908 (before amendment in 1956) - interpretation of section 82 - section 82 requires to specify time for execution of decree - in case of non compliance of this mandatory provision decree is not complete and decree holder cannot put into execution his decree - decree holder is always at liberty to rectify mistake or to fill lacuna. - - (1) where in a suit by or against the government, or by or against a public officer in respect of any such act as aforesaid, a decree is passed against the union of india or a state, or as the case may be, the public officer, a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified the court shall report the case for the orders of the state government. (2) execution..........for a refund of surcharge amounts levied from the government. while all suits were decreed no time for satisfaction of the decrees was specified in them. since the decrees were not discharged, the decre-holders filed execution petitions. the executing court in accordance with the terms of section 82 reported the case for the orders of the state government within a short space of time, the judgment-debtor deposited the decretal amount including costs of suits but not costs of the execution petitions. later on, the decree-holders filed the present execution petitions for costs of the e. ps. 2. these were resisted by the government i. e. the appellant on the objection that they were not entitled to the costs of the e. ps. since at the relevant time the decrees were not executable. this.....
Judgment:

P. Chandra Reddy C. J.

1. These appeals raise a question bearing on the interpretation of Section 82 of the Code of Civil Proce- dure. The suits out of which these appeals arise were filed against the appellant i. e., the then Government of Madras represented by the District Collector of East Godavary for a refund of surcharge amounts levied from the Government. While all suits were decreed no time for satisfaction of the decrees was specified in them. Since the decrees were not discharged, the decre-holders filed execution petitions. The executing court in accordance with the terms of Section 82 reported the case for the orders of the State Government Within a short space of time, the judgment-debtor deposited the decretal amount including costs of suits but not costs of the execution petitions. Later on, the decree-holders filed the present execution petitions for costs of the E. Ps.

2. These were resisted by the Government i. e. the appellant on the objection that they were not entitled to the costs of the E. Ps. since at the relevant time the decrees were not executable. This objection was negatived by the trial court and costs were awarded to the respondents as claimed by them.

3. The question to be determined in these appeals filed by the aggrieved defendant is whether the respondent can make any claim in regard to execution costs in the circumstances indicated above. This in its turn depends upon the interpretation of Section 82 of tie Code of Civil Procedure. As it stood prior to the amendment by Article 66 of 1956, that section recited:

'(1) Where in a suit by or against the Government, or by or against a public officer in respect of any such act as aforesaid, a decree is passed against the Union of India or a State, or as the case may be, the public officer, a time shall be specified in the decree within which it shall be satisfied; and, if the decree is not satisfied within the time so specified the court shall report the case for the orders of the State Government.

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the data of such report.'

It may incidentally be mentioned that Section 8 of Act 66 of 1956 has inserted a clause 'or within three months from the date of the decree where no time is so specified' after the clause 'if the decree is not satisfied within the time so specified' in Subsection (1). We are not concerned with that amendment as it would not govern the instant cases, having been passed long after the filing of the execution petitions. It is manifest that a duty is cast on the court to specify in the decree itself time within which it should he satisfied.

4. Sri Chandrasekhara Sastry attempts to support the judgment of the trial court on the contention that since this provision for specifying the time is introduced to help the Government it is for the latter to have definite time fixed for the satisfaction of the decree and if it does not choose to avail itself of the protection that is afforded to it under that section it shall be deemed to have waived it in which case the decree-holder is entitled to proceed with the execution immediately after a decree is made. We are unable to give effect to this argument.

5. Section 82 requires a time to be specified for the satisfaction of the decree and if this mandatory provision is not complied with, the decree is not complete. It is only when the conditions laid down in Section 82 are fulfilled that the decree-holder could put into execution his decree. Till then it is incomplete and incapable of being executed. It is true that the decree, does not become void or illegal but the question is not whether it is void or invalid but whether it is ripe for execution. The right to levy execution arises only when there is a decree which is complete.

There is no hardship to the decree-holder, by the non-fulfilment of Section 82 by the court as is sought to be made out. He is always at liberty to have the mistake rectified or lacuna filled in and the problem of a litigant suffering for the fault of a court does not arise for solution. It follows that a decree-holder who files an execution petition before the expiry of the period specified for the satisfaction of the decree or before having necessary alternations made in a case. where no time is speci-fied would not be entitled to execution costs.

6. Our view is supported not only by the plain language of the section but by decided cases. In Dominion of India v. Costa Behari, : AIR1950Cal247 , it was decided by Harries and Sarkar JJ., that when no time is stated in the decree within which it was to be satisfied it could not be executed. A single Judge of the Patna High Court ruled in Governor-General of India in Council v. Piramal, AIR 1948 Pat 179, that till a time was mentioned for the satisfaction of the decree the decree was incomplete and not final nor executable, This was followed by a Bench of the Allahabad High Court in U. P. Government v. Firm Briz Mohanlal, : AIR1953All96 , which held that where no time was fixed the decree could not be executed, though not void. We feel that these decisions embody correct law, if we mity say so with respect.

7. On the above discussion, it follows that in tho circumstances set out above the decree-holders ore not entitled to costs of the execution petitions and the view of the court below is unsustainable.

8. In the result, the appeals are allowed. No order as to costs.


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