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1989 DIGILAW 248 (ORI)

GOURANGA CHARAN BARAL v. JAGANNATH BARAL

1989-08-07

S.C.MOHAPATRA

body1989
JUDGMENT : S.C. Mohapatra, J. - judgment-debtor is the Petitioner in this Civil revision against an order allowing the amendment of the execution petition. 2. Direction in the preliminary decree in partition carried over to the final decree is under execution. Decree-holders were entitled to recover 122 bharans of paddy as clarified in the preliminary decree. Decree-holder executing the decree was entitled to 17 bharans and 23 pudies therefrom as his share. After the final decree, he filed execution case No. 10 of 1970 for recovery of the same. However, it was dismissed. Long thereafter, he filed execution case No. 2 of 1981 for realisation of Rs. 5,486/- towards value of 17 bharans, 16 pudies of paddy. When the execution proceeding was continuing, Decree-holder filed an application on 25-11-1988 for amending the amount sought to be recovered on the ground that in the meantime, price of paddy has increased. judgment-debtor resisted the application for amendment. Executing court having allowed the application for amendment, this civil revision has been filed. 3. Mr. P.R. Barik, learned Counsel for the Petitioner submitted that Plaintiff having sought for realisation of a quantified amount of Rs. 5,486/- from the judgment-debtor, there is no scope for amending the same after a long period of the decree. Mr. A.K. Rao, learned Counsel for the decree-holder opposite party relying on Order 20, Rule 10, CPC and Order 21, Rule 31, CPC submitted that the decree being for paddy which is specific moveable property, judgment-debtor is liable to deliver such property or the value thereof on the date of delivery. judgment-debtor not having paid the amount when the decree was passed and even on receipt of notice of execution is liable to deliver the paddy or its price at the prevailing rate on the date of delivery. Prayer for amendment was made for realisation of price of the moveable property as prevailing at the time of amendment. 4. In case contention of Mr. A.K. Rao that quantity of paddy decreed is specific moveable property provision of Order 20, Rule 10 CPC and Order 21, Rule 31 CPC would be attracted. They read as follows: Order 20, Rule 10. 4. In case contention of Mr. A.K. Rao that quantity of paddy decreed is specific moveable property provision of Order 20, Rule 10 CPC and Order 21, Rule 31 CPC would be attracted. They read as follows: Order 20, Rule 10. Decree for delivery of moveable property: Where the suit is for moveable property and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as on alternative if delivery cannot be had. Order 21, Rule-31. Decree for specific moveable property. (1) Where the decree is for any specific moveable, or for any share in a specific moveable it may be executed by the seizure, if practicable, of the moveable or share and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both. (2) Where any attachment under Sub-rule (1) has remained in force for three months, if the judgment-debtor has not obeyed the decree and the decreeholder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of moveable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of three months from the date of the attachment, no application to have the property sold has been made, of, if made, has been refused," the attachment shall cease. Reading both the provisions together, it is clear that specific moveable property as provided in both the provisions relate to something which is specific and identifiable. Quantity of paddy is not identifiable and a judgment-debtor may pay paddy of that quantity any type. These two provisions, therefore, have no application to a case where a decree is made against a person making him liable for a certain quantity of paddy. 5. Quantity of paddy is not identifiable and a judgment-debtor may pay paddy of that quantity any type. These two provisions, therefore, have no application to a case where a decree is made against a person making him liable for a certain quantity of paddy. 5. Paddy is not a commodity which can be permanently preserved. Besides, there are varieties of paddy and the prices of different varieties differ. In such circumstances, legislature never intended that Order 20, Rule 10, CPC or Order 21, Rule 31, CPC would be attached in respect of a decree making the judgment-debtor liable for a certain quantity of paddy. 6. Merit of the petition for amendment can be examined from another angle. Order 20, Rule 10, CPC provides that the court giving a decree for delivery of moveable property is also to state the amount of money to be paid on the alternative if delivery cannot be had. Neither trial court nor this Court in appeal followed this provision. In the final decree also the same was not quantified. Thus, trial court and court of appeal not having followed Order 20, Rule 10, CPC executing court cannot go behind the decree and fix the quantum by amendment when the judgment-debtor objects to it. Decree-holder could have got the decree corrected from the appropriate court. No action has been taken in that respect although the decree of the appellate court was of the year 1973. 7. Question may be examined from still another angle. If paddy is said to be specific moveable property, money would also be specific moveable property. If a decree for money is given, can the amount decreed be enhanced on account of devaluation of money? The answer would be in the negative. 8. Examined from any angle, decree-holder would not be entitled to the enhanced value of paddy since the amount has already been quantified in the execution petition which has not been objected to by the judgment-debtor. Decree-holder, however, shall be entitled to the amount with interest as would be fixed by the executing court at its discretion. In the circumstances of this case, I am inclined to hold that the decree-holder is entitled to interest @ 6% per annum from the date of filing of the application for execution in 1981 till payments are made. Decree-holder, however, shall be entitled to the amount with interest as would be fixed by the executing court at its discretion. In the circumstances of this case, I am inclined to hold that the decree-holder is entitled to interest @ 6% per annum from the date of filing of the application for execution in 1981 till payments are made. Petitioner has asserted that some amounts have been paid for satisfaction of the decree and by order of this Court an amount of Rs. 4,000/- has been deposited, The same shall be adjusted while calculating the interest and the balance liability of the Petitioner shall be worked-out. After quantifying the liability, opportunity shall be given to the Petitioner to pay the balance within a period to be fixed by the executing court whereafter, steps for realisation of the same shall be taken. 9. In the result, civil revision is allowed. No costs. Revision allowed. Final Result : Allowed