Nalinbhai M. Shah v. Visnagar Nagrik Sahakari Bank Ltd.
1995-04-27
J.N.BHATT
body1995
DigiLaw.ai
J. N. BHATT, J. ( 1 ) IN this Revision Application under section 115 of the Code of Civil Procedure, the petitioner has questioned the legality and validity of the order passed below application Ex. 33 in Darkhast No. 759 of 1988. ( 2 ) RESPONDENT No. 1 herein had filed a lavad Case No. 73 of 1987 in the Court of nominee under the Gujarat Co-operative societies Act in which a decree came to be passed ex parte against the petitioner and respondent No. 2, by virtue of which the defendant is directed to pay Rs. 5,47,203. 52 ps. with interest. ( 3 ) BEING aggrieved by the said judgment and order passed by the Nominee Court, the petitioner and respondent No. 2, both preferred appeals, being Appeal No. 90/88 and Appeal No. 182/88, before the Gujarat co-operative Tribunals (hereinafter referred to as the Tribunal ). The Tribunal by a common order rejected both the appeals. The matter was carried further by filing special Civil Application no. 130/90 and 131/90 before this Court for setting aside the ex parts decree passed by the Court of the Nominee. ( 4 ) RESPONDENT No. 1-Visnagar Nagrik sahakari Bank Limited gave application no. 759 of 1988 before the City Civil court, Ahmedabad in which Jangam warrant came to be issued on 27-11-1988. According to the case of the petitioner, at the time of execution of the said Jangam warrant a cheque for Rs. 3,64,626. 62 ps. came to be handed over to the Bailiff which was ultimately encashed as per the orders of this Court. Thus the respondent-Bank has recovered the said amount in the execution application. According to the petitioner, the amount mentioned was more than the amount due under the decree and therefore, the petitioner had taken out Civil application No. 274 of 1990 to direct respondent No. 1-Bank to refund the amount of Rs. 5,702. 00 which was overpaid and, was beyond the decretal amount due. This Court in Special Civil application had permitted the petitioner to withdraw the said amount with liberty to raise the same contention before the executing Court. ( 5 ) RESPONDENT No. 1-Bank had given an application, Ex. 88, to amend the Darkhast by which a new form was submitted showing a difference of about Rs.
This Court in Special Civil application had permitted the petitioner to withdraw the said amount with liberty to raise the same contention before the executing Court. ( 5 ) RESPONDENT No. 1-Bank had given an application, Ex. 88, to amend the Darkhast by which a new form was submitted showing a difference of about Rs. 1,38,000/- by way of additional amount of interest and produced a statement of interest which was calculated at 21% p. a. instead of simple interest, alongwith the aforesaid form. The said application was opposed by the petitioner by submitting. his objections at ex. 35 in which liberty was reserved that if the Darkhast was amended the petitioner should be allowed to argue on that point the trial court had allowed the amendment of the Darkhast and again Jangam warrant was issued for the balance amount. The order dated 6-4-1990 passed below application Ex. 334 in Darkhast No. 759 of 1988 by the trial court, is under challenge in this Civil Revision application. ( 6 ) THE scope in the Revision Application under Section 115 of the Code of Civil procedure is very much circumscribed. Section 115 of the Code empowers this court to satisfy itself on the following three matter : (1) that the order of the subordinate court is within its jurisdiction; (2) that the case is one in which the court ought to exercise jurisdiction; and (3) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provisions of law or with material irregularity resulting into miscarriage of justice. Having regard to the facts and circumstances emerging in the present revision application none of the aforesaid points is attracted. The impugned order granting amendment in the execution petition is a question of exercise of power under Order VI Rule 17 of the Code in the light of the facts of the case. There is no question of law involved. There is no jurisdictional error. In the circumstances, this Revision Application is found without any merit and is dismissed accordingly. Rule is discharged with no order as to costs. Interim relief stands vacated. .