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Yusufbhai Ismailbhai and anr. Vs. Vakil Mohanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Case NumberA.F.O.D NO. 373 OF 1960
Judge
Reported inAIR1965Guj282
ActsCode of Civil Procedure (CPC), 1908 - Sections 38 and 47; Bombay Money Lenders Act, 1947 - Sections 23
AppellantYusufbhai Ismailbhai and anr.
RespondentVakil Mohanlal and ors.
Appellant Advocate A.H. Mehta, Adv.
Respondent Advocate J.M. Shah, Adv. for; K.T. Pathak and; N.S.Parghi, Ad
Cases Referred and Katwari v. Sita Ram Tewari
Excerpt:
.....court to go into the question of the invalidity of the decree or the question whether the decree is right or wrong. kailasa thevar [1951]2scr292 .in their case their lordships of the supreme court have clearly laid down a sunder: though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation'.in para 8 of their judgment, their lordships have clearly laid down, that the duty of the executing court is to give effect to the terms of the decree which has already been passed. they observed that an executing court can refuse to execute a consent decree on the ground that to do so would in effect be dispossessing the bhagdar of the bhag in contravention of section 1 of the bombay bhagdari and narwadari act (5 of 1962). this is again a..........by doing so, that the decree is wrong or invalid, but while recognising its duty to execute the decree, the executing court can say that it is also bound by the provision in the enactment whereby it should refuse to hand over possession. the learned counsel for the appellants also relies on ramaswamy aiyangar v. kailasa thevar : [1951]2scr292 . in their case their lordships of the supreme court have clearly laid down a sunder: -'the duty of an executing court is to give effect to the terms of the decree. it has no power to go beyond its terms. though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation'. in para 8 of their judgment, their lordships have clearly laid down, that the duty of the executing court is to give.....
Judgment:

(1) It is contended in this appeal that although the High Court passed a decree in a suit on mortgage for the recovery of the principal amount of Rs. 60,000/- together within interest and further ordered that future interest after the date of the decree should be at the rate of 4% the executing Court cannot order future interest on the ground that to do so would be to violate the proceedings of section 23 of the Bombay Money Lenders Act which prohibits the award of interest executing the principal amount. It is also contended that under the provisions of section 23 of the Money Lenders Act, the executing Court cannot pass a decree for interest exceeding the principal amount oat the date of the decree.

(2) It is not necessary to consider whether this contention has merit or not in view of the principle that it is not open to the executing Court to question the terms of the decree or in question the validity of any part of the decree. It is not open to the executing Court to say that a part of the decree violates the provisions of section 23 of the Money Lenders act and therefore should not be executed. There is authority for this view in the declaration of law made by the Supreme Court in Haji Sk. Subhan v. Mahorao : AIR1962SC1230 . Their Lordship of the Supreme Court have held that an executing Court cannot question the decree and must execute it as it stands. The learned counsel for the appellants, however, relies on this case and contends that their Lordships of the Supreme Court have, in effect, allowed the executing Court to refuse execution of the decree. Their Lordships of the Supreme Court have clearly stated that it is not open to the executing Court to go into the question of the invalidity of the decree or the question whether the decree is right or wrong. But it is open to the executing Court to consider whether a person to when possession has been awarded in accordance with he decree is not entitled to it by virtue of some provisions of some other Act. A decree may order possession, but there may be some provision in some other enactment whereby an executing Court cannot hand over possession to that man. In such a case, the executing Court does not questions the decree, but is bound by some other enactment passed by the Legislature and being so bound refuses to hand over possession. By doing so, that the decree is wrong or invalid, But while recognising its duty to execute the decree, the executing Court can say that it is also bound by the provision in the enactment whereby it should refuse to hand over possession. The learned counsel for the appellants also relies on Ramaswamy Aiyangar v. Kailasa Thevar : [1951]2SCR292 . In their case their Lordships of the Supreme Court have clearly laid down a sunder: -

'The duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation'.

In para 8 of their judgment, their Lordships have clearly laid down, that the duty of the executing Court is to give effect to the terms of the decree which has already been passed. In fact, their Lordships of the Supreme Court set aside the decision of the Madras High Court on the ground that the Madras High Court was sitting as an executing Court and its duty was to give effect to the terms of the decree. The case, therefore, does not support the learned counsel for the appellants.

(3) The learned counsel; for the appellant has also relied on Bai Suraj v. Haribhai Motobhai AIR 1943 Bom 54, Meenakshi Ammal v. Chidambaram AIR 1947 Mad 341 and Katwari v. Sita Ram Tewari, ILR 43 All 547: (AIR 1921 All 118) (FB). In the Bombay case the learned Judges of the Bombay High Court were dealing with a consent decree. They observed that an executing Court can refuse to execute a consent decree on the ground that to do so would in effect be dispossessing the bhagdar of the bhag in contravention of Section 1 of the Bombay Bhagdari and Narwadari Act (5 of 1962). This is again a case like the case in : AIR1962SC1230 . The executing Court does not refuse execute a decree on the ground that the decree is invalid or incorrect, but on the ground that there is another legislation which prevents from executing the decree. In the Madras case it is observed that although an executing Court cannot go behind the decree, it will refuse to order the sale of any property where it is plain on the face of the record that its alienation is prohibited by statue or opposed to public policy. In this case as well as in the Allahabad case, the question is whether an executing Court can order a sale other property. An executing Court can order a sale of the property which is not directly decreed in the decree only if the sale is otherwise permissible under the law. These cases do not help the learned counsel for the appellants.

(4) As the executing Court cannot go beyond the decree and cannot question the validity or correctness of the decree, the appeal is dismissed. No order as to costs.

(5) Appeal dismissed.


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