Firm Lakhmi Dass Mohan Lal vs Firm Karam Chand Lal Chand

R.S. Narula and D.K. Mahajan, JJ.—The facts relevent for disposing of this Letters Patent Appeal of the decree holder against the dismissal of his Excecution First Appeal No. 356 of 1980 by a learned Single Judge of this Court and upholding the order of the Executing Court declining to revive an earlier execution application, are not in dispute and may first be noticed. The appellant (who is referred to in this judgment as the decree holder) obtained a money decree against the respondent-firm on June 4, 1950, from a Civil Court at Delhi. The first execution proceedings taken out against the judgment debtor firm at Karnal in pursuance of a transfer certificate obtained from Delhi on January 21, 1955, were consigned to the record as unsatisfied on February 10 in that year. Some property of Karam Chand attached on November 15, 1965, in the second execution case commenced on a transfer certificate obtained from Delhi en November 10, 1955, was released on October 26, 1956 on Karam Chand''s objections.

In pursuance of a third transfer certificate issued by the Delhi Court on October 15, 1957 an application for execution (execution case No. 280 of 1957) was tiled in the Court of the Senior Subordinate Judge Karnal on October 15, 1957. Though the original record of the case is not before us, it is frankly and candidly admitted by Chaudhry Roop Chand, the Learned Counsel for the decree-holder, that in the said application for execution, the name of Jai Dayal alone was mentioned as the judgment-debtor against whom execution was sought and that the only relief claimed in the said application was for recovery of the decretal amount from Jai Dayal judgment-debtor and his property. The property of Jai Dayal was attached in the said execution proceedings as prayed for by the decree holder. Jai Dayal''s objections against attachment were, however accepted by the Karnal Court and the attachment was raised by order, dated August 26, 1958, on the ground that name of Jai Dayal was not mentioned in the array of judgment-debtors named in the transfer certificate issued by the Delhi Court. In Execution First Appeal No. 457 of 1958, preferred by the decree-holder against the said order of the executing Court (order, dated August 26, 1958), a compromise was effected between the decree holder on the one hand and Jai Dayal on the other, before Meher Singh. J. (as my Lord, the Chief Justice then was). In accordance with the terms of the compromise, Jai Dayal paid Rs. 2 500/ to the decree-holder and he (Jai Dayal) was admittedly absolved fully and finally of his liability under the decree in question in every capacity including that of partner in the judgment-debtor firm. In the consent order passed by this Courtis the said previous Execution First Appeal on September 9, l959, it was no doubt stated that the decree-holder could proceed according to law with the execution of the decree against the judgment debtors other than Jai Dayal

It was in the above situation that the application from which this appeal has ultimately arisen was filed by the decree holder on October 21, 1959, in the transferee Court at Karnal to revive and restore the application for execution of the decree against Jai Dayal (execution case No 2"0, dated October 15, 1957) which had been consigned to the record on August 26, 1958. The request made in the present application was to execute the decree by attachment and sale of the property of Karam Chand etc, leaving out Jai Dayal. By order, dated August 26, 1958, the executing Court dismissed the application of the decree holder on the ground that the only prayer in the execution application, dated October 15. 1957, was for execution of the decree against Jai Dayal and the latter having been absolved from liability under the decree by the compromise in the High Court, there was no question of restoring the said execution case against the above said order of the execution Court, dated August 26, 1960; the decree-holder came up in Execution First Appeal No. 356 of 1960 to this Court. His first appeal was dismissed by a learned Single Judge of this Court (Shamsher Bahadur, J.) on November 1, 1962, on three grounds viz :

(1) the original application having been dismissed as unsatisfied in the presence of the parties on merits and not in default, the executing Court had no jurisdiction to revive or restore the same;

(2) once a transferred decree is satisfied or certified in the manner set forth in section 41 of the Code of Civil Procedure, no further power remains with the transferee Court and that when a decree has been partially executed and result certified to the Court which passed the decree, a fresh transfer certificate should be obtained from the transferor Court for initiating further execution proceedings;and

(3) the execution application which had been dismissed on August 26, 1958, had been directed against Jai Dayal only and it would be manifestly erroneous to restore it when Jai Dayal had been finally absolved from liability by the High Court in pursuance of the compromise between the parties.

In this appeal under clause 10 of the Letters patent against the above-mentioned judgment of the learned Single Judge, counsel for the decree-holder has not been able to satisfy us as to what would be the possible advantage of restoring and reviving the application for execution which was made for executing the decree against Jai Dayal only, when admittedly no execution proceedings can now be taken by the decree-holder against Jai Dayal even if the executing Court could revive the supplication (which had been consigned to the record as unsatisfied in the presence of parties and result certified to the transfer or Court) in exercise of its inherent jurisdiction, a proposition with which we are unable to agree. It is meaningless to ask a Court to invoke its inherent jurisdiction for reviving an application for execution which cannot possibly be proceeded with or result in any benefit to the decree-holder. In this view of the matter, the judgment of the learned Single Judge has to be and is hereby affirmed. This appeal, therefore fails and is accordingly dismissed; but in view of the unfortunate situation in which the decree-holder has been placed, parties are left to bear their own costs.