E.M. Subbiah vs Kempakkal Gowder and Others

Balasubrahmanyan, J.—This revision has been filed by the decree-holder against the dismissal of an execution petition filed by him to execute a decree for Rs. 8,468.39 and costs of Rs. 1,586,50 Notice was given to the judgment-debtors of this execution petition when it was filed before the executing Count. The judgment debtors filed a counter-affidavit in which it was stated that they had made payments, towards the decree of Rs. 1,500 on 16th October 1974and two sums of Rs. 500 each on 21st October 1974 and 30th April 1975 respectively. They also stated that they had obtained receipts from the decree-holder''s Counsel for these payments. They pleaded that the repayments amounting to Rs. 2,500, in partial discharge of the decree, had not been given credit to in the execution petition. Having set out these facts, the judgment debtors suggested that the execution petition for the entire decree amount without giving c edit to the repayments must be regarded as having been based on false recitals.

It appears from the record that subsequent to the filing of the counter-affidavit by the judgment-debtors, the Petitioner filed a memo before the Count admitting the payments referred to by the judgment-debtors, the implication being that execution may be levied for the balance still remaining in the decree amount as respects which the judgment debtors had not denied their default of payment.

The executing Count took note of the repayments admitted by the decree-holder in his memo. But, curiously enough, the Court did not proceed to (SIC)eckon what was the balance still outstanding in the decree, let alone proceed to execute it; Instead, the Court went off at a tangent to characterise the decree-holder as having filed the execution petition with an evil intention merely to harass the judgment-debtors. As if this adverse remark were not enough, the Court proceeded to dismiss the execution petition out right for the reason that the decree-holder did not give credit to the sum of Rs. 2,500. All these observations were made and the execution petition dismissed, despite the Counts finding that these Respondents had not substantiated any of the other contentions raised in their counter-affidavit.

It seems to me that the method of disposal adopted by the Court below is indefensible. There was no dispute by the judgment debtors about the amount decreed, nor about the costs of the suit payable by them. The mode of execution for which the Count''s assistance was sought by the decree-holder was the appointment of a receiver under Order XXI , Rules 44 and 45 of the Code of Civil Procedure, together and sell the plantain crop and flowers grown in the land belonging to the judgment-debtors. There was no tenable objection by the judgment-debtors as to this mode of execution. Indeed, as the executing Court pointed out in its order, none of the objections of the judgment-debtors to the execution was sustainable. In these circumstances, to dismiss the execution petition on the one and only ground that three items of payments had not been given credit to, is wholly unjustified and must be regarded as an irregular exercise of jurisdiction on. a wilful withholding of the jurisdiction, whichever way it is looked at.

It is true that in drawing up the execution petition the decree-holder did not give credit to the payments and allow counter -interest before arriving at the outstanding decree amount calling for execution. But, there is no material to hold that the omission to give c edit to the repayments was willful or was actuated by any malice or evil motive as observed by the Court below. The fact that the decree-holder had filed a memo before the Court accepting the factum of repayment amounting to Rs. 2,500 and was willing to give credit to those sums together with counters interest thereon, is a clear indication that there was no willfulness on the part of the decree-holder or any attempt at willful suppression of material facts relating to execution at the time he filed the petition.

The Count below had referred to the fact that subsequent to the filing of the counter-affidavit by the judgment-debtors in which they had drawn the Count''s attention to the repayments made by them, the decree-holder himself happened 1c file an additional affidavit. The comment of the Count is that while filing the additional affidavit, the decree-holder did not take the opportunity to acknowledge his mistake in the execution petition and then and there agree to give c edit to the sum of Rs. 2,500 and to counter-interest thereon. According to the Count below, the commission in the further affidavit filed by the decree-holder clearly showed that the original intention in filing the execution petition for the entire decree amount without giving c edit to Rs. 2,500 must be held to be actuated by an evil intention. It seems to me that even this inference of the Court is far-fetched. The perusal of the additional affidavit shows that it was mainly prompted and filed as supporting evidence for obtaining certain interim orders against the judgment-debtors. Having regard to its limited perspective, the affidavit did not particularly advert to the amount of the decree in execution. Even assuming that the decree-holder might have taken that opportunity to enter in the additional affidavit his acceptance of the factum of the three repayments, the fact that the actually omitted to do so, cannot, by itself, lead to an inference that the original execution petition itself was based on malice against the judgment-debtors. At all events, there was no warrant at all for an outright dismissal of the execution petition on the mere score that the amount for which the petition had been filed was incorrect even according to the decree-holder himself.

On the basis of the Count''s finding that the decree-holder had accepted having received Rs. 2,500 and had filed a memo to that effect and on the further finding that the contentions raised by the judgment-debtors were not tenable, the one and the only way in which the Court could have exercise its jurisdiction execution would have been to proceed to decide the merits of the execution petition after giving c edit to the amounts paid towards the decree.

I have, therefore, no hesitation in setting aside the order of the Court below dismissing the execution petition. The judgment-debtors, although served with notice of revision, have not appeared before this Court either in person or by Counsel. It is, however, represented by learned Counsel for the decree-holder that taking advantage of the dismissal of the execution petition and particularly the adverse remarks passed by the Court below as respects the bona fides of the decree-holder in filing the execution petition, the judgment-debtors have since applied to the Court below for sanction. u/s 195 of the Code of Criminal Procedure, to prosecute the decree-holder for making a false verification in the execution petition. This submission by learned Counsel was evidently made as a piece of information relating to the subsequent development in the case, just by way of illustrating the fax-reaching effect of the adverse remarks made by the learned Judge in his order under revision. It is needless to say that no Court will go into a question which is net properly before it. I do not, therefore, wish to go into the merits or otherwise of the application which is stated, to be pending before the Court below for sanction for prosecution. Nor have I the detail of the said proceedings. I would, however, be failing in the exercise of my revisional jurisdiction if I do not again in make clear what I have already found, namely, that having regard to the finding of the executing Court and also the conduct of the decree-holder which is evident from the order of revision, there is no basis whatever for holding that the decree-holder was actuated by any evil intent. At all events, the record does not show that before making this observation as to the motivations of the decree-holder the executing Court gave him an opportunity to explain himself. Indeed, the record shows that neither the decree-holder nor the judgment-debtors were examined at the enquiry, either on this aspect, or for that matter, on any other aspect connected with the execution petition. With this further observation, I allow the revision petition, set aside the order of the Court below and direct the Court below to hear and determine the execution petition on merits and in accordance with law. There will be no order as to costs.