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Chhabil Das Vs. Gokal Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 259
Judge
Reported in1978WLN(UC)412
AppellantChhabil Das
RespondentGokal Das and ors.
Excerpt:
.....by the judgment-debtor.;when the entire decretal amount has been deposited, the application of the decree-holders under 21 rule 50 cpc, for attachment and sale of the in move able property of the judgment-debtor was bound to be rejected. but it cannot be held to be a legal consequence thereof that the decretal amount to the tune of rs. 49,456/-, which was deposited by the judgment-debtor in the execution case for payment to the decree-holders more than two months age should be with held merely en the basis of a legal quibbling, causing loss & harassment to the decree-holders in my humble opinion, the executing court had no right or authority to keep back the decretal amount, so deposited by the judgment-debtor in the execution case, unless it is directed to with hold the payment of..........specified therein relating to depositing the decretal amount within two weeks. subsequently, the decree holders applied for execution of the decree by attachment and sale of the immoveable property of the judgment-debtor. then the judgment-debtor submitted an application under order 41 rule 6(2) of the code of civil procedure praying for stay of sale of immoveable property the executing court by its order dated august 9, 1978 directed that rs. 49,436/- should be deposited by the judgment-debtor within one week or the judgment debtor should furnish a bank guarantee for the aforesaid amount within one week. against this order a revision petition was preferred in this court, which was decided by the order dated august 17, 1978 and the order passed by the executing court dated august 9,.....
Judgment:

D.P. Gupta, J.

1. This application for clarification of the order of this Court dated August 17, 1978, as modified by the ordei dated September 21, 1978, has been presented by the decree-holders in this Court. The relevant facts may be briefly stated here.

2. The District Judge, Pratapgarh, camp Chittorgarh passed a decree on December 8, 1976 against the petitioner Chhabildas on the basis of an award. The judgment-debtor Chhabildas filed an appeal in this Court challenging the validity of the award, which has been made a rule of the court and on the basis of which the decree dated December 8, 1976 was passed. In that appeal, which is still pending in this Court being D.B. Civil Misc. Appeal No. 219 of 1976, the judgment-debtor applied for stay of the execution of the decree and a conditional order of stay was passed by this Court on March 7, 1977 but the same has spent itself, as the judgment debtor did not comply with the conditions specified therein relating to depositing the decretal amount within two weeks. Subsequently, the decree holders applied for execution of the decree by attachment and sale of the immoveable property of the judgment-debtor. Then the judgment-debtor submitted an application under Order 41 Rule 6(2) of the Code of Civil Procedure praying for stay of sale of immoveable property The executing court by its order dated August 9, 1978 directed that Rs. 49,436/- should be deposited by the judgment-debtor within one week or the judgment debtor should furnish a bank guarantee for the aforesaid amount within one week. Against this order a revision petition was preferred in this Court, which was decided by the order dated August 17, 1978 and the order passed by the executing court dated August 9, 1978 was modified to the extent that the judgment-debtor was allowed one week's further time from August 17, 1978 to deposit Rs. 20,000/- in the executing court and the remaining decretal amount was directed to be deposited within 30 days from the date of the order of this Court. The judgment-debtor applied for extension of time and by the order dated November 21, 1978, the time for making the deposit was also extended and it was ordered that in case the judgment-debtor failed to deposit the decretal amount within the extended period, the decree-holders shall be entitled to proceed with the sale of the immoveable property. It is net in dispute that the judgment-debtor has already deposited the entire decretal amount within the time allowed by this Court. When the order passed by the executing court dated August 9, 1978 was not complied with, the decree holders submitted an application under Order 21 Rule 30 CPC for attachment and sale of the immoveable property of the judgment-debtor, which was dismissed by the order of the executing court dated October 7, 1978 on the ground that the judgment-debtor having deposited the entire decretal amount in the executing court, it would amount to abuse of the process of the court to proceed with the attachment and sale of the property of the judgment debtor. But the executing court surprisingly also directed the decree-holders to obtain an order from this Court for payment of the decretal amount deposited by the judgment-debtor in that court. This Court directed the decree holders by its order dated November 4, 1978 to move the executing court again for the payment of the decretal amount deposited by the judgment debtor in that court to them and on that basis the decree-holders moved the executing court again and a copy of the order passed by the executing court dated November 21, 1978 has been produced before this Court. The decree holders have prayed that the order parsed by this Court on August 17, 1978, as modified by the order dated September 21, 1978, be clarified as desired by the executing court.

3. I have perused the order passed by the executing court on November 21. 1978. It has been mentioned therein that this Court did not take notice of the order passed by the executing court on October 7, 1978 and that the executing court does not consider it proper to proceed to make payment of the decretal amount deposited by the judgment-debtor in that court to the decree-holder unless so directed by this Court. The order appears to be absolutely arbitrary and no reason has been assigned by the executing court in support of this order.

4. Now, the position is that the execution case is pending before the learned District Judge. The decree-holders have prayed for the execution of the decree in the sum of Rs. 49,436/-.

5. In an appeal against the award, this Court refused to stay the execution of the decree. The executing court granted stay of sale of immoveable property of the judgment-debtor on the condition that he should deposit the decretal amount within one week from its order. The time allowed by the executing court was extended by this Court in revision by its order dated August 17, 1978, which was further modified by the subsequent order dated September 21, 1978. The judgment-debtor has deposited the entire decretal amount in the executing court There is no order of stay of execution from any Court. I fail to understand, in these circumstances, as to why and under what law the executing court requires a direction from this Court before proceeding to make payment of the decretal amount to the decree holders in execution of the decree. In my view, it is the duty of the executing court to execute the decree in the execution proceeding pending before it and when the entire decretal amount has been deposited by the judgment debtor in those proceedings, the executing court appears to be failing in the performance of its legal duty in not proceeding to execute the decree by making payment of the decretal amount to the decree-holders.

6. Learned Counsel for the judgment-debtor, Chhabildas, frankly conceded before me that the judgment debtor has no objection to the payment of the decretal amount deposited in the court by the judgment debtor to the decree-holders in the execution case except that the rights of the judgment-debtor, in case the appeal pending in this Court is allowed, may be safe-guarded. The stay application filed by the judgment-debtor in D.B. Civil Misc. Appeal No. 219 of 1976 pending in this Court, has been rejected and there is no impediment at present to the payment of the decretal amount to the decree-holders in the execution of the decree. The view of the executing court that it does not consider it proper to make payment of the decretal amount deposited by the judgment-debtor in that court to the decree-holders until an order is passed by this Court is, in my view, totally unsound and uncalled for. When this Court has not passed any order of stay, why the executing court requires an order of this Court even for the performance of its legal duty of executing the decree. I am constrained to observe that the executing court is either not aware of the legal position or it has been careless in the performance of its duty, while passing the aforesaid order. As already explained above, no order of this Court is necessary in this respect, as the executing court is duty bound to execute the decree in the absence of any order of stay from a competent court, more so when the entire decretal amount has already been deposited in the executing court by the judgment-debtor.

7. I may also observe that I have gone through the order of the executing court dated October 7, 1978 and I fail to understand as to whit is contained in that order which led the executing court to think that it was necessary for this Court to make a reference to that order. When the entire decretal amount has been deposited, the application of the decree holders under Order 21 Rule 30 C.P.C. for attachment and sale of the immoveable property of the judgment-debtor was bound to be rejected But it cannot be held to be a legal consequence thereof that the decretal amount to the tune of Rs. 49,436/-, which was deposited by the judgment-debtor in the execution case for payment to the decree-holders more than two months ago should be with held merely on the basis of a legal quiboling, causing loss and harassment to the decree-holders. It my humble opinion, the executing court had no right or authority to keep back the decretal amount, so deposited by the judgment-debtor in the exertion case, unless it is directed to withhold the payment of such amount to the decree-holders.

8. In the circumstances mentioned above, the executing court should proceed to make payment of the decretal, amount deposited by tin judgment-debtor in execution of the decree, to the decree-holders, unless & until there is any order of a competent court restraining it from executing the decree. I may add that such a clarification was not at all needed but for the order passed by the executing court of November 21, 1978 as it is implicit in the order passed by this Court on August 17, 1978.


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