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(Palli) Vittala Hedge Vs. Paniyur Hosamane Sheenappa Shetty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad872; 147Ind.Cas.386
Appellant(Palli) Vittala Hedge
RespondentPaniyur Hosamane Sheenappa Shetty
Excerpt:
- - the learned district judge was so struck by the irregularities of the execution department in the subordinate courts in his district and the careless manner in which that department was being worked by the officers of the courts as well as by litigants and their advisers that he has passed very strong strictures on what ho quite rightly terms the apathy and indifference associated with the execution of civil court decrees......also ignored. in fact the appellate decree deducted about rs. 30 from the amount awarded by the original decree and reduced it from rs. 378 to rs. 317. in these fifteen applications the larger amount was applied for; but no one was hurt because as the learned judge himself says the judgment-debtor successfully evaded arrest during all the time. the judge says it is a disgraceful thing that warrants for arrest should be returned unexecuted fifteen times.2. at last in execution petition no. 411 of 1929 the judgment-debtor was arrested by the karkal munsif's court and then he paid rs. 300, about half the decree amount, and raised the objection that in the previous applications the appellate court decree was not mentioned and a larger amount than was due was prayed for and that he should.....
Judgment:

Pandalai, J.

1. The lower Court has dismissed an execution petition by the appellant filed in the Karkal Munsif's Court on 3rd July 1929, to execute his decree made in O.S. No. 875 of 1919 by the Udipi Munsif's Court on the ground of want of jurisdiction and limitation. The learned District Judge was so struck by the irregularities of the execution department in the Subordinate Courts in his district and the careless manner in which that department was being worked by the officers of the Courts as well as by litigants and their advisers that he has passed very strong strictures on what ho quite rightly terms the apathy and indifference associated with the execution of civil Court decrees. The justification of these remarks in this execution consists in fifteen applications in execution during a period of five or six years in all of which it seems the particulars required by Order 21, Rule 11, Civil P.C., were wrongly entered. The fact of there having been an appeal was ignored with the consequence that the modification effected by that decree was also ignored. In fact the appellate decree deducted about Rs. 30 from the amount awarded by the original decree and reduced it from Rs. 378 to Rs. 317. In these fifteen applications the larger amount was applied for; but no one was hurt because as the learned Judge himself says the judgment-debtor successfully evaded arrest during all the time. The Judge says it is a disgraceful thing that warrants for arrest should be returned unexecuted fifteen times.

2. At last in Execution Petition No. 411 of 1929 the judgment-debtor was arrested by the Karkal Munsif's Court and then he paid Rs. 300, about half the decree amount, and raised the objection that in the previous applications the appellate Court decree was not mentioned and a larger amount than was due was prayed for and that he should not be mulcted with the costs of those erroneous petitions. This objection being allowed, that execution petition was dismissed. Then the decree-holder, on 3rd July 1929, filed his last execution petition which gave rise to this appeal, containing correct particulars. The application was again made to the Karkal Munsi's Court, the Court which passed the decree being the Udipi Munsif's Court. The learned Judge has dismissed this petition on two grounds: first that the Karkal Court had no jurisdiction to entertain the petition because the appellate Court's decree was not transferred to that Court but only the original Court's decree; and secondly because the previous applications during a period of four or five years in which only the original Court's decree was mentioned and not the effect of the appeal or the deduction in the decree amount made thereby are not applications for execution in accordance with law and therefore the present petition is time barred.

3. The learned Judge is wrong on both points. When a Court passes a decree and there is a decree in appeal therefrom and thereafter a petition for execution to the first Court, there is only one decree to be executed, viz. the original decree as amended by the appellate Court, When in such circumstances a petition for transfer of execution is prayed for to that Court and granted by it, as admittedly it was in this case, the above decree is the only decree which can be transferred and the transfer cannot be understood as if it were a piecemeal transfer, i.e., a transfer of the original decree and not of the appellate decree; for the simple reason that there are no two decrees and in the eye of the law there is only one. In accordance with that principle when the Udipi Munsif's Court transferred the execution to the Karkal Munsif's Court and sent the necessary certificates with a copy of the appellate decree which was the governing document which would show the amount due to the decree-holder if read along with the original Court decree, that was a full and complete transfer for all purposes of law. Therefore the point as to the want of jurisdiction fails.

4. Next as to the previous applications being not in accordance with law, that is founded upon the omission in the earlier applications-there are 15 of them-of any reference to the fact of there being an appeal or of the diminution of the original decree amount in accordance with the appellate judgment. The effect of that was that the particulars (d) and (g) which are required to be contained in every petition for execution by Order 21, Rule 11(2) were erroneous. But that does not mean that the applications themselves were not in accordance with law. As those petitions were erroneous in particulars, if anybody had taken care to detect the error, the decree-holder should have been required to correct the errors and re-present the petition with correct particulars. This not having been done, on account, as the learned Judge says, of the apathy and indifference associated with the execution of civil Court's decrees or of the judgment-debtor's successful evasion of his obligations nothing came of these petitions. They were dismissed. These being the facts, the omission from the previous execution petitions of the particulars required by Clauses (d) and (g) was not sufficient to make them otherwise than in accordance with law. And if they were in accordance with law the present petition was within time.

5. The order of the lower Court is set aside and the petition will be sent to the original Court to proceed with the execution in due course. It is however open to the first Court in view of what has occurred to disallow the costs incurred by the petitioner on the defective petitions, a sum of Rs. 33-9-0. The appellant will have his costs here and in the Courts below.


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