State Bank of Patiala vs Alpna Industries and Another

D.P. Sood, J.—The judgment-debtors in the main execution proceedings, have filed this application under Order 1, Rule 10, read with Section 151 of the CPC requesting that Sapurdar, that is Mehar Chand Trust, Saproon, through its president and the National Insurance Company, Sector-17, Chandigarh, through its manager, be also impleaded for imparting proper justice to them. Some of the grounds, amongst others, are that certain goods worth the value of the loan advance, that is, Rs. 75,000, were pledged with the decree holder and kept in the hired premises belonging to Mehar Chand Trust, Saproon, at the monthly rental of Rs. 80 per month payable by the judgment-debtors ; that the decree holder while obtaining the decree did not bring this fact to the notice of the court and sought ex parte decree in question by playing fraud upon the court ; that the said decree has now been put by the decree-holder in execution and instead of getting their dues adjusted from the value of the said pledged goods, they have proceeded against the other property belonging to them. Under the circumstances, the application, referred to above, has been moved.

The application has been hotly contested by the decree-holder on the ground that it is neither maintainable nor on the basis of acts and conducts of the judgment-debtors can it he gone into by this court at this stage as none of the aforesaid persons are necessary parties. Rather, according to them, the said application being merely to delay the execution proceedings, is misconceived.

In rejoinder, the contentions raised by the decree-holder have again been refuted and those of the application are reiterated. At this stage, it would be pertinent to detail that the allegation with respect to the pledging of the goods with the decree-holder-bank in the aforesaid premises has not been denied by the decree-holder. Rather, it has been admitted that the applicants-judgment debtors have moved an application before the learned Senior Sub-Judge, Solan, for redemption of the pledged goods/ raw material to the applicants or its adjustment in value towards the outstanding dues of the decree holder.

Learned counsel for the parties have made a statement at the Bar that in view of the admission of the allegations, neither any issue nor production of evidence is required. Accordingly, arguments have been heard at length.

Shri L. R. Dhiman, learned counsel for the applicants, has vehemently urged that by allowing the application, the insurance company, in particular, with whom the decree holder filed the claim in the status of pledgee, regarding the theft of the pledged goods, would be in a position to state about the claim or value thereof to which the judgment-debtors are entitled and the said claim proceeds are, in the first instance, adjustable towards the outstanding dues''of the decree holder, instead, allowing the latter to proceed against the other property (immovable property). Thus, according to the arguments of learned counsel, the application is liable to be allowed.

On the other hand, Shri K.D. Sood, learned counsel appearing on behalf of the decree-holder, has vehemently contended that the execution petition is pending since the year 1985, and till the date of filing of the instant application on October 3, 1989, various objections raised by the judgment-debtors pertaining to the sale of the immovable property have been rejected by this court lastly by order dated May 19, 1987, whereby it has been held that the objection pertaining to the main residential house of the judgment-debtor being exempted from attachment, had earlier been negatived by a judgment dated August 7, 1979, of a learned single judge of this court in an execution petition details of which have been given in the order dated April 3, 1987. In other words, the immovable property of the judgment-debtors under attachment is liable to be sold in execution of the petition. Further, it has been contended that Order 1, Rule 10, Civil Procedure Code, is not applicable to the execution proceedings nor the aforesaid persons car. be impleaded as parties. In any case, as per the further contention of learned counsel for the decree-holder, all the objections, intermittently, raised by the judgment-debtors are with a view to delay the execution proceedings and this is the object behind the instant application as well. Accordingly, the application being misconceived and not maintainable, is liable to be dismissed.

Having regard to the arguments of learned counsel advanced on behalf of the parties in the instant case, to my mind the submissions made by learned counsel for the judgment-debtors appear to be devoid of merit.

In the first instance, Order 1, Rule 10 of the Code of Civil Procedure, is applicable only during the proceedings in a suit. Such powers under Order 1, Rule 10, Sub-rule (2) can only be exercised when the proceedings are alive and still pending. Thus, once the adjudication itself of all the disputes in the case is over, this provision cannot be made use of by any party. I find support from the observations made in the case of Mir Sardar Ali Khan v. Special Deputy Collector Land Acquisition (Industries), AIR 1973 AP 298 and that of Ramader Appala Narasinga Rao v. Chunduru Sarada AIR 1976 AP 226.

Even otherwise, there are two parties to the execution proceedings nomenclatured as "decree holder" and "judgment-debtors". For the sake of arguments assuming that the application, aforesaid, is maintainable, this court has no power to implead anyone of the parties either in the array of decree holders or that of the judgment-debtors. Further, viewing the fact in the light of the averments therein and assuming the said facts to be true, for the sake of arguments, that the decree holder sought ex parte decree by playing fraud upon the court. In that view of the matter, the judgment-debtors had a right to challenge the decree in appropriate proceedings, that is either by getting the ex parte decree set aside under Order 9, Rule 13, Civil Procedure Code, or by way of appeal or revision or by filing a suit against the decree holder to get the said decree set aside on the basis of fraud having been committed by them. But, in no way. can this application be considered to be maintainable either under Order 1, Rule 10, or Section 151 of the Code of Civil Procedure. It is true that when a special provision is made, resort to the general provisions like under Order 1, Rule 10, may not be appropriate. As observed above, the judgment-debtors have got the right of getting the ex parte decree set aside in either of the modes referred to above. Section 151 of the CPC gives inherent powers to this court to entertain the application and to avoid the abuse of the process of the court but entertaining of such applications vary with the facts and circumstances of each case.

At this stage, it may be noticed that the judgment-debtors did make an attempt to get the ex parte set aside but they failed. However, a remedy by way of a separate suit is not yet barred subject to other legal exceptions.

Once the suit has been decreed and the said decree having become final and is put in execution, it is only within the purview of Section 47 of the Code that the objections could be raised.

The scope of objection by the judgment-debtors is pertaining to execution, discharge or satisfaction of the decree and not to go behind the decree to question its validity on the grounds which were open to the judgment-debtors at the appropriate stage before the decree was passed or in the alternative till the decree was got set aside in an appropriate proceedings in an appeal or revision, What Section 47 contemplates is that the executing court must take the decree as it is according to its tenor and must not entertain any objection that the decree was incorrect in law or on facts till the decree is set aside in the manner stated above. The executing court cannot go behind the decree nor it can go into the question of its correctness or validity except where the decree is a nullity.

Viewed from any angle whatsoever, this petition is neither maintainable nor can it be gone into by this court as the subject-matter thereof does not pertain to execution, discharge or satisfaction of the decree within the purview of Section 47 of the Code. As such, application is dismissed.

At this stage, I cannot help observing that as per the facts admitted by the parties in the instant case, the claim with respect to the pledged goods alleged to have been stolen, was filed by the decree-holder with the insurance company concerned. As per R-3 annexed with the reply of this application, it appears that the said insurance company asked the judgment-debtors to co-operate in finalising the claim but they did not do so and, consequently, the claim was put at rest instead of getting it pursued with the help of the pledgee, that is, the decree holder-instead of further pursuing the litigation by either parties to the instant case, it would be better on the part of the insurance company in case they reopen the said claim and finalise the same expeditiously, say, within three months from the date of this order. In that event, both the parties, that is to say, decree holder as also the judgment-debtors would co-operate with the insurance company to finalise the claim. In case any amount is worked out by the insurance company in favour of the judgment-debtors, that would be adjusted towards the decretal amount. However, the said observations will not, in any way, preclude the decree holder from pursuing their execution by requesting the attachment and sale of other property belonging to the judgment-debtors.