TANTIRAM HARPRASHAD VAISHYA v. BALDHARI SINGH TEJ SINGH THAKUR
1961-02-06
R.D.SHUKLA
body1961
DigiLaw.ai
ORDER R.S. Shukla, Member The applicant is a decree-holder and during the execution proceedings, the non-applicant was appointed as 'Supurdgidar' of certain movable properties of he judgment-debtor. The non-applicant failed to produce the property entrusted to him when ordered to do so and, in consequence, the Court, inter alia, ordered attachment of the compensation amount payable to the non-applicant under the M.B. Zamindari Abolition Act. Subsequently, some of the articles entrusted to the non-applicant, were produced by him and he also paid Rs. 400 for the loss of one buffalo and the grass-cutting machine. Having done this, the non-applicant prayed that he might be released from the Supurdgi. The Tahsil Court, after hearing the applicant and the non-applicant, passed order on 3-10-55 releasing the non-applicant from his Supurdgi. The Tahsil Court, however, did not pass any order in regard to the subsisting attachment of non-applicant's compensation amount. It is alleged that when the non-applicant approached the Compensation Authorities for the payment of his compensation he came to know that the said compensation amount had been paid off by the Tahsil to the applicant-decree-holder on 17-2-58. Thereupon he represented to the Tahsil Court that the said amount was not payable to the decree-holder inasmuch as he (non-applicant) had been relieved of his responsibilities as Supurdgidar as early as 3-10-55 and the amount wrongly paid to the applicant should be refunded to him. The Tahsildar rejected his prayer, but the Sub-Divisional Officer set aside the order of the Tahsildar and directed that the refund may be made to the non-applicant after due enquiry. The applicant-decree holder then approached the Additional Commissioner in second appeal, but the same was dismissed and the Additional Commissioner held that the Court had inherent power u/s 151 of the CPC to order the refund. The Additional Commissioner's order has now been challenged in revision. The main contention of the learned counsel for the applicant is that the order of the Tahsiidar dated 3-10-55 has been misread by the Sub-Divisional Officer and the Additional Commissioner. According to him the non-applicant Supurdgidar was released of his Supurdgi subject to the attachment of his compensation amount. Secondly, although it was within the knowledge of the non-applicant that his compensation amount had been attached, he took no steps to recover it. This was because the non-applicant knew that the Tahsildar had not set aside the attachment in respect of compensation amount.
Secondly, although it was within the knowledge of the non-applicant that his compensation amount had been attached, he took no steps to recover it. This was because the non-applicant knew that the Tahsildar had not set aside the attachment in respect of compensation amount. The execution was struck off after payment of attached compensation amount to the decree-holder on 17-2-58 in satisfaction of the decree. It was after this order i.e., on 18-2-68 that the non-applicant applied for the refund of the compensation amount. Since the non-applicant did not appeal against the order of the Tahsildar dated 3-10-55, the same had become final. Lastly, it was not open to the execution Court to start restitution proceedings u/s 144 of the CPC as there was no variation or amendment of the decree. If the non-applicant thought that the applicant had appropriated something which was not due to him, it was open to him to seek his remedy in the civil Court. The inherent power cannot be exercised when some other remedy under the law may be open to an aggrieved person. After carefully considering the arguments advanced on both the sides I am of opinion that the view taken by the learned Additional Commissioner in regard to the scope of section 151, CPC is correct and there is no force in the revision petition. The order of the Tahsildar dated 3-10-55 is comprehensive enough and shows that the non-applicant was completely absolved of all responsibility in regard to his charge. Once the order of release had been passed by the Court the attachment of his compensation amount, which was made on account of his failure to account for the property under his Supurdgi, automatically stood cancelled. Further it is to be noted that the non-applicant had no notice of the subsequent action of the Tahsildar, viz., obtaining compensation amount from the Compensation Officer and disbursing it to the decree-holder. That the non-applicant did not take any steps to recover his compensation amount cannot be a justification for the Tahsildar to pay it to the decree-holder or to constitute a ground for the applicant to say that the money should be lost to the non-applicant due to lapse of time.
That the non-applicant did not take any steps to recover his compensation amount cannot be a justification for the Tahsildar to pay it to the decree-holder or to constitute a ground for the applicant to say that the money should be lost to the non-applicant due to lapse of time. The cause of action to the non-applicant arose when the Tahsildar actually ordered the payment of the amount to the applicant-decree-holder on 17-2-68 and the only reasonable step that he could take was to make an application pointing out the injustice done to him and praying for the refund of his compensation amount. The non-applicant could not apply for review of the Tahsildar's order dated 17-2-58 because he was not a party in the execution proceedings. On the same ground he could not go to the civil Court against the decree-holder. The obvious course was to invoke inherent power of the Court concerned and I do not see why section 151 should not be pressed into service in a case like this where an obvious wrong was done to the non-applicant by an action of the Court. It would be an abuse of the process of law if the earlier order of attachment is to be kept alive and is implemented against the non-applicant without any notice to him. It was wrong on the part of the Tahsildar not to have cancelled the attachment of non-applicant's compensation amount, even though he had released him from all the responsibilities of Supurdgi. A Supurdgidar has to be distinguished from a judgment-debtor. The responsibility of the former ceases after his release from Supurdgi and the amount which was held up for the non-performance of his obligation, or duty must stand released automatically after the order dated 3-10-55. If a wrong was done to a party by the Court it obviously calls for rectification and there should be nothing wrong in exercising inherent power of the Court to undo the wrong. I, therefore agree with the learned Additional Commissioner that although section 144 is not applicable, there is no bar in passing order of refund u/s 151, Civil Procedure Code. In the above view the revision petition is dismissed with cost. Final Result : Dismissed