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Omarali Mondal Vs. Aibi Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1132 of 1965
Judge
Reported inAIR1980Cal361,(1980)1CompLJ354(Cal)
ActsCode of Civil Procedure (CPC) , 1908 - Section 47
AppellantOmarali Mondal
RespondentAibi Bibi and ors.
Appellant AdvocateRanjit Kumar Banerjee, ;Mukul Gopal Mukherjee and ;Tapendra Nath Basu, Advs.
Respondent AdvocateShyama Charan Mitter and ;Ashok Kumar Sen Gupta, Advs.
DispositionAppeal dismissed
Cases ReferredDuli Chand v. Moman Chand
Excerpt:
- g.n. ray, j. 1. this appeal arises out of the judgment and decree passed by the learned subordinate judge, third court, alipore, in title appeal no. 1247 of 1963 affirming the judgment and decree passed by the munsif, first court, barasat, in title suit no. 2 of 1959. the plaintiff is the appellant in the instant appeal and the said suit was instituted for a declaration that the order passed in connection with title execution case no. 76 of 1958 of the said first court ofmunsif at barasat and the kobala executed in favour of defendants nos. 1 to 4 in the said execution case were null and void and without consideration. it appears that initially a suit being title suit no. 112 of 1952 was instituted and the parties to the instant suit were also parties in the suit. the said suit was.....
Judgment:

G.N. Ray, J.

1. This appeal arises out of the judgment and decree passed by the learned Subordinate Judge, Third Court, Alipore, in Title Appeal No. 1247 of 1963 affirming the judgment and decree passed by the Munsif, First Court, Barasat, in Title Suit No. 2 of 1959. The plaintiff is the appellant in the instant appeal and the said suit was instituted for a declaration that the order passed in connection with Title Execution Case No. 76 of 1958 of the said First Court ofMunsif at Barasat and the kobala executed in favour of defendants Nos. 1 to 4 in the said execution case were null and void and without consideration. It appears that initially a suit being Title Suit No. 112 of 1952 was instituted and the parties to the instant suit were also parties in the suit. The said suit was disposed of on the following order;

'That the suit be decreed on contest against defendants 1 and 2 with costs and ex parte against the rest. Defendant No. 1 shall execute a saf kobala in respect of the suit properties in favour of the plaintiffs on receiving Rs. 3,000 from them and get it registered within one month from this date. In default a kobala in respect of the suit properties in favour of the plaintiffs will be executed and registered through Court on plaintiff's depositing Rs. 3,000/- in court.' It appears that the said judgment was affirmed up to this Court. It further appears that the decree-holders put the said decree in execution and in the said execution proceeding the executing Court executed a saf kobala (deed of sale) in favour of defendant No. 1 and the said kobala was also registered in terms of the decree. Defendant No. 1 in the said suit thereafter filed the instant Title Suit being Title Suit No. 2 of 1959 inter alia contending that the proceeding in Title Execution Case No. 76 of 1958 and the orders passed thereunder and also the kobala executed in favour of the decree-holder, plaintiff, were null and void and without consideration. The plaintiff in the instant suit, (defendant No. 1, in the earlier suit), contended that a saf kobala was to be executed by the executing Court on the plaintiff's depositing Rs. 3,000/- in Court. But the plaintiff in the said suit had not deposited the said sum of Rs. 3,000/- and as such the decree was not executable and consequently the orders passed by the executing Court and execution of the said saf kobala and registration thereof through the intervention of the executing Court were illegal and null and void. The trial Court came to the finding that the orders passed in the relevant execution proceeding and the kobala executed in favour of the defendants through Court were all perfect and legal and there was no cause of action for instituting the instant suit. In that view of the matter the instant suit was dismissed by the trial court and the plaintiff appellant preferred the said Title Appeal No. 1247 of 1963. The Court of Appeal below held that the executing Court hadthe competence to interpret the judgment and decree passed in the said previous suit and as Rs. 3,000/- had already been in deposit in the trial court which passed the decree it must be held that the decree-holder complied with the condition of depositing Rs. 3,000/- and was thus entitled to Ret the decree executed and the kobala executed and registered by the Court. The Court of Appeal below upon consideration of the ordering portion of the judgment passed in the said previous suit which has been set out hereinbefore came to the finding that the 'language as used therein as quoted earlier, runs to the effect that the kobala will be executed and registered through the court on plaintiff's depositing Rs. 3,000/- in court. This can easily be interpreted that unless Rs. 3,000/- be deposited, no kobala in favour of the plaintiff would be executed and registered through the court. It does not, therefore, exclude the deposit which was already made prior to the passing of the order.'

The Appeal Court was also of the view that without questioning the validity of the decree it was within the scope of the executing Court to put its own interpretation on the terms of the decree and to find out which interpretation was rational and equitable and the Court of Appeal below came to the finding that the only proper interpretation to the terms of the decree passed in the said previous suit was that the money already in deposit was in substantial compliance of the condition of depositing Rs. 3,000/- for getting the kobala executed by the executing Court.

2. Mr. Banerjee, learned Counsel appearing for the plaintiff appellant in the instant appeal, contended that the duty of the executing Court was to give effect to the terms of the decree but in giving effect to the terms of the decree or in interpreting the same, the executing Court cannot make a new decree for the parties. For this contention Mr. Banerjee referred to a Supreme Court decision in V. Ramaswami Aiyengar v. T. N. V. Kailasa Thevar, : [1951]2SCR292 . It was held in that decision that the executing Court had a duty to give effect to the terms of the decree but it had no power to go beyond its terms. Though the executing Court had the power to interpret the decree, it could not make a new decree for the parties under the guise of interpretation. Mr. Banerjee also referred to another decision of the Supreme Court in this context made in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, : [1971]1SCR66 . It was held in that decision that the Court executing a decree could not go behind the decree between the parties. It must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or in fact. Until the decree was set aside in an appropriate proceeding in appeal or revision, a decree, even if it be erroneous, was binding between the parties. For a similar proposition Mr, Baneriee referred to a decision of the Privy Council made in the case of The Bank of Bihar Ltd. v. Sarangdhar Singh, AIR 1949 PC 8. Mr. Baneriee submitted that it was a fact that the said sum of Rs. 3,000/- was lying in deposit in the trial court before the passing of the decree but through misconception of fact the court passed the decree to the effect that the kobala would be executed on depositing Rs. 3,000/- by the plaintiff in the said suit. Mr. Banerjee submitted that the executing court was to take the decree according to its tenor and the executing Court could not entertain any objection that the decree was incorrect in law or in fact, as decided by the Supreme Court in the aforesaid decision made in the case of Vasudev Dhanjibhai Modi. Mr. Banerjee contended that in an appropriate case the decree could be corrected by the executing Court under Sections 151 and 152 of the Civil Procedure Code and in appropriate case the executing Court may even take note of change of law and its effect on the decree and hold that the decree had become inexecutable but in the facts of the instant case, Mr. Baneriee contended, a valid decree was passed by a competent Court and the Court might have lost sight of the fact that the said sum of Rs. 3.000/- had been lying in deposit in the Court itself and on a misconception of fact it passed the said decree. But the executing Court in the guise of interpreting the decree could not change the said decree. Accordingly Mr. Baneriee contended that the plaintiff not having deposited a sum of Rs. 3,000/- in terms of the decree the said execution proceeding was not maintainable and the kobala executed by the executing court in favour of the plaintiff in the said suit was without jurisdiction and as such illegal and void.

3. Mr. Mitter, learned Counsel appearing for the respondents, contended that the money had been lying in deposit in the said Court and as such it must beheld that the condition of the decree has been complied with. He submitted that if a required amount lies in deposit in a court, then the Court is custodia legis of the said amount and it must be held that the plaintiff in that suit was not required to make any further deposit of the said sum of Rs. 3,000/-. In this connection Mr. Mitter referred to a decision of the Supreme Court in Duli Chand v. Mohan Chand, : AIR1979SC1307 . In that case the landlord made an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 before the Rent Controller, Bhiwani, for ejectment of the tenant. Under the said Act the tenant was under an obligation to deposit certain sums of money to avoid a decree for eviction. The tenant made an application before the said Rent Controller inter alia stating that he had deposited Rs. 109.37 under the order of the Court of the Rent Controller-cum-Senior Sub-Judge under the Punjab Relief of Indebtedness Act, 1934. The tenant along with the said application tendered a further sum towards interest and costs and overhead expenses. It was held by the Supreme Court that where the tenant had deposited the arrears of rent to the credit of the landlord in the very Court of the Rent Controller in which the landlord subsequently filed the petition for eviction, the tenant would be deemed to have complied with the requirements of the proviso even if the tenant had obtained the permission of the Rent Controller for making the deposit by referring to Section 31 of the Punjab Relief of Indebtedness Act as the fact remained that the money was in custodia legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. The Supreme Court observed in the said case that the question might have been different if the deposit had not been made in the same Court. Mr. Mitter relying on the said decision contended that in the instant case the said sum of Rs. 3,000/- (sic) and in terms of the decision of the Supreme Court it must be held that the plaintiff had complied with the terms of the decree passed in the said suit, namely, requirement of the plaintiff to deposit the sum of Rs. 3000/-. Mr. Mitter also contended that the executing Court has certainly the power to interpret the decree and it will be quite evident from the judgment passed by the Court of Appeal below that the Court of Appeal below had held that the executing Court in executing the said decree had in fact interpreted the decree in its true spirit. Mr. Mitter also referred to a Bench decision of this Court made in the case of Sita Nath Saha v. Hari Rani Dasya, reported in (1942) 46 Cal WN 509. B. K. Mukherjea, J. (as his Lordship then was) speaking for the Court held in the said decision that where in a partition decree there was a discrepancy between the chitta and the dowl on the one hand and the map on the other, the former should prevail and the map should be rectified. It was also held that when the executing Court was the same court which passed the decree, it could correct the decree so as to bring one portion into conformity with the other. Mr. Mitter submitted that in the instant case the executing court was the same court which passed the decree and as such the said executing court could also correct the decree so as to reconcile any ambiguity in the judgment itself.

4. Mr. Banerjee, learned Counsel for the appellant, in reply to the aforesaid contention of Mr. Mitter contended that the decision of the Supreme Court made in the case of Duli Chand v. Moman Chand, : AIR1979SC1307 (supra) can be distinguished. He submitted that on the principle enunciated by the Supreme Court the money already lying in deposit in the trial court could have been held as payment made by the plaintiff but when in spite of such deposit, the trial court on a misconception of fact passed the decree, such erroneous decree was also a valid decree and could not be corrected by the executing Court. He submitted that in appeal or even in revisional application, it could have been contended that the said decree was erroneous and as such the decree should be corrected noting the fact that the payment had already been made. But the executing court had no authority to correct a valid decree passed by a competent court, even when such decree was passed on erroneous consideration of fact.

5. After considering respective submissions made by the learned Counsel appearing for the parties it appears to me: that in the judgment made in the said Title Suit No. 112 of 1952 it was only directed that the executing court will execute and register a saf kobala on plaintiff's depositing Rs. 3,000/- in Court. As the said sum of Rs. 3,000/- had been lying in deposit in Court, in my view, it must be held on the basis of the Supreme Court decision in Duli Chand's case : AIR1979SC1307 that the court was custodia legis of the said sum. It was not directed by the trial court in the said suit that although a sum of Rs. 3,000/- had been lying in deposit, the plaintiff was to deposit Rs. 3,000/- for getting the kobala executed and registered by the executing court. If such an order was passed then the executing court had no authority to correct the decree although on the principle of custodia legis as enunciated by the Supreme Court, such adjudication by the trial Court would have been erroneous. In my view, the Court of Appeal below was quite justified in holding that without questioning the validity of the decree it was within the scope of the executing Court to put a reasonable interpretation of the order and the only proper interpretation of order was that the said sum of Rs. 3,000/- had been deposited by the plaintiff. The Court of Appeal below was also justified in holding that the language used in the ordering portion of the judgment in the said suit as quoted hereinbefore runs to the effect that the kobala will be executed and registered through the Court on plaintiff's depositing Rs. 3,000/- in Court. The said ordering portion can easily be interpreted to the effect that in the absence of Rupees 3,000/- being deposited, no kobala in favour of the plaintiff will be executed and registered through Court. But the said ordering portion does not exclude any deposit which had already been made prior to the passing of the decree. Accordingly I do not find any justification to take a contrary view. The appeal, therefore, fails and is dismissed but I make no order as to costs.

6. Let the records be sent down as expeditiously as possible.


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