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2005 DIGILAW 598 (RAJ)

Shanti Lal Jain v. Bhartiya Jeevan Bima Nigam

2005-02-22

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshari, J.-With the consent of the learned Counsel for the parties, matter was heard finally. 2. This revision petition has been submitted by the Judgment debtors against the order dated 111.2002 passed by the Executing Court Addl. District Judge No. 1. Sikar in Execution Case No. 8/2000 whereby the learned Executing Court ordered the execution proceedings to be continued for recovery of an amount of Rs. 1,96,659.35. 3. Brief facts relevant for the present purposes are that the non-petitioner. Life Insurance Corporation of India filed a civil suit against the petitioners. Shantilal Jain, Kanti Kumar Jain and Ummed Mal Jain alongwith Smt. Vimla Devi wife of Shantilal Jain for recovery of the amount due in the defendants. This Civil Original Suit No. 72/95 was decreed by the trial Court on 31.1998 for a sum of Rs. 2,25,617/-with stipulations regarding the rate of interest as 17.5% per annum pendente lite and 15% per annum from the date of the decree till realisation of entire amount. The bone of contention between the parties is about meaning, effect and operation of the stipulations in the decree regarding interest at the rate of 15% per annum till recovery of the entire amount as to on which amount this interest is to be calculated? The decree dated 31.1998 provided for payment of the decreetal amount by the defendants in quarterly instalments of Rs. 50,000/-with further stipulation that in case of two consecutive defaults, the plaintiff would be entitiled to recover the entire remaining amount and for that purpose would also be entitled to put the mortgaged property to auction. The decree further stipulated that the interest would be payable on the remaining due amount after reducing the amount paid by way of instalments. 4. It appears that the Judgment debtors made payment of some of the instalments but thereafter defaulted in payment and the decree holder levied execution on 4.2000 which was proceeded in Execution Case No. 8/2000. It appears that an objection petition was submitted by the petitioners which was ultimately disposed of by the Executing Court on 19.2001 with the directions that the petitioners would make payment of the amount of Rs. 1 lac on 19.2001, further Rs. 1 lac on 110.2001 and further Rs. It appears that an objection petition was submitted by the petitioners which was ultimately disposed of by the Executing Court on 19.2001 with the directions that the petitioners would make payment of the amount of Rs. 1 lac on 19.2001, further Rs. 1 lac on 110.2001 and further Rs. 1 lac on 111.2001 and thereafter make payment of the remaining amount on 112.2001 and on their doing so, the attachment proceedings were ordered to remain in abeyance and it was specifically ordered that upon any single default in payment of instalments, the execution would be proceeded with. 5. The petitioners submitted before the Executing Court on 8.5.2002 that they had made the payments in pursuance to and in compliance of the order dated 19.2001 and according to them, the total payment made by them of Rs. 3,48,248/-on the dues after 33.2000 was in complete discharge of the decree, and, therefore, the execution proceedings be terminated and the mortgaged documents be ordered to be returned. The non-petitioner decree holder on the other hand submitted a different calculation before the Executing Court on 25.2002 and according to them, an amount of Rs. 1,96,659.35 as on 25.2002 was still due to be recovere 6. The learned Executing Court has proceeded to consider the matter on 111.2002. The learned Executing Court observed that in the particulars and calculation stated by the Judgment debtors, the rate of interest was not indicated, whereas, the calculation of the decree-holder clearly stated the rate of interest, and, therefore, the Executing Court was of the opinion that the amount due as shown by the decree holder deserves to be directed to be recovered. The learned Executing Court further observed that the interest calculated by the decree holder has not been specifically denied by the Judgment debtors nor any calculation mistake has been pointed out. Therefore, the details given by the decree holder appears to be correct at that stage. With these observations, the Executing Court ordered that the execution proceedings shall be continued for recovery of the amount of Rs. 1,96,659.35. The petitioners have submitted the revision petition against this order dated 111.2002. 7. Therefore, the details given by the decree holder appears to be correct at that stage. With these observations, the Executing Court ordered that the execution proceedings shall be continued for recovery of the amount of Rs. 1,96,659.35. The petitioners have submitted the revision petition against this order dated 111.2002. 7. Having heard the learned Counsel for the parties and having perused the material on record, this Court is clearly of the opinion that learned Executing Court while passing the order dated 111.2002 has failed to exercise the jurisdiction vested in it by law and at any rate has acted with material irregularity in exercise of its jurisdiction. Before the learned Executing Court, it was specifically asserted by the Judgment debtors that they had made the entire payment of the amount due under the decree and in accordance with the directions issued by the Court on 19.2001. The decree holder on the other hand contended the aforesaid amount of Rs. 1,96,659.35 to be still due. Obviously, therefore, the questions arose between the parties to the suit relating to the execution, discharge or satisfaction of the decree and those questions were required to be determined by the Executing Court. However, in place of specific determination of the questions, the Executing Court raised an objection that the rate of interest for calculation was not clarified by the Judgment debtors and further also observed that the interest calculation of the decree holder has not been specifically denied by the Judgment debtors nor any calculation error had been shown. On these sconsiderations alone, the learned Executing Court observed that the calculation by the decree holder appeared to be correct at that stage. This Court is clearly of the opinion that a serious question regarding discharge or satisfaction of the decree as raised by the Judgment debtors and countered by the decree-holder could not have been determined in such a cursory manner by the Executing Court. 8. The decree dated 31.1998 was before the Executing Court and so also the order dated 19.2001. For determination of the questions raised by the parties, the learned Executing Court was required to come to a definite conclusion about the amount due, if any, before proceeding with further execution of the decree. 8. The decree dated 31.1998 was before the Executing Court and so also the order dated 19.2001. For determination of the questions raised by the parties, the learned Executing Court was required to come to a definite conclusion about the amount due, if any, before proceeding with further execution of the decree. So far the rate of interest is concerned, the same is not of the doubt or dispute, the same being 15% per annum from the date of decree till realisation of the entire amount. Merely because the Judgment debtors did not mention the rate of interest in the calculation, the entire calculation could not have been discarded altogether nor calculation by the decree holder could have been accepted on this count alone. So far raising of objection by the Judgment debtors is concerned, the same was obviously available before the Court when two contradictory calculations were placed before the Court by the Judgment debtors and the decree holder respectively. This Court is clearly of the opinion that learned Executing Court has failed to exercise the jurisdiction vested in it by law of determining the questions arising between the parties and has also acted with material irregularity in not considering the material on record and not recording a definite finding regarding the amount due, if any. The impugned order, therefore, deserves to be set aside and the case deserves to be remanded back to the Executing Court to specifically determine the questions regarding discharge or satisfaction of the decree and to record a specific finding of amount due, if any, before proceeding further with the execution. 9. Notice was issued to the non-petitioner in this revision petition on 112.2002 and on the stay application, this Court passed the following order:-"Issue notice to the respondents. In the meanwhile, further execution proceedings in the present case shall remain stayed subject to petitioners depositing Rs. 1 lakh with the trial Court within 30 days from today, failing which, the respondent will be free to proceed with the execution proceedings." 10. The petitioners submitted an application on 21.2003 before this Court seeking enlargement of the time for deposit of the amount of Rs. 1 lac as directed by the order dated 112.2002. On the said application, this Court passed the following order on 31.2003: "If the applicants -petitioners deposit Rs. The petitioners submitted an application on 21.2003 before this Court seeking enlargement of the time for deposit of the amount of Rs. 1 lac as directed by the order dated 112.2002. On the said application, this Court passed the following order on 31.2003: "If the applicants -petitioners deposit Rs. 1,00,000/-(one lac) before the Deputy Registrar (Judl.), Rajasthan High Court Bench Jaipur till 2.2003, then the stay granted on 112.2002 will continue." 11. The office report shows that the amount of Rs. 1 lac has been deposited on 2.2003 by the petitioners before the Dy. Registrar (Judicial) of this Court. As the matter deserves to be remanded back to the Executing Court and further proceedings are to be taken before and by the Executing Court only, it is also considered appropriate that the amount so deposited by the petitioners before the Dy. Registrar (Judicial) in this revision be also remitted to the Executing Court which shall be kept in deposit by the Executing Court and its disbursement and further treatment shall be subject to be determination of the questions by the Executing Court. 12. In the result, this revision petition and the stay petition are disposed of . The impugned order dated 112.2002 is set aside and the matter is remanded back to the Executing Court for determination of the questions regarding discharge, satisfaction or execution of the decree in accordance with law. The amount of Rs. 1 lac deposited by the Judgment debtors with the Deputy Registrar (Judl.) of this Court shall also stand remitted to the Executing Court who shall keep it in deposit and order its disbursement after and according to the determination of the questions aforesaid. The parties shall appear before the Executing Court on 23.2005. No order as to costs.