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Rajasthan High Court · body

2005 DIGILAW 664 (RAJ)

Punjab National Bank v. Durga Prasad Gehlot

2005-02-28

DALIP SINGH

body2005
Judgment Dalip Singh, J.-Heard learned Counsel for the parties. 2. This Court had directed on 1.10.2003 that the non-petitioner No. 2 should deposit the ount o 50,000/-with the petitioner-bank. This order was in the light of the fact that a decree for an ount o 1,10,360/- passed against the non-petitioner No. 1 who was the principal debtor and the non-petitioner No. 2 who the guarantor. The trial Court in the aforesaid decree dated 11.2.1994 had directed that the plaintiff-decree holder bank would first auction the hypothecated vehicle bearing registration No. RRD 1851 and after realizing the proceeds from the aforesai auction if some amount remains outstanding the sam should be recovered by the decree holder from the efendants-Judgment debtor whose liability was joint andseveral. 3. The decree holder put the decree to execution and the pension account of the non-petitioner No. 2 was ed. FDR of the petitioners were also attached as e same were alleged to be the retirement benefits of the non-petitioner and as such an objection was raised at in view of Section 60 of CPC the same cannot be ed and the decree cannot be satisfied from the aforesaid FDRs by the decree holder. The non-petitioner No. 2 came up in revision before this Court and on 29.4.1999 this Court directed that the learned Executing Court must proceed in accordance with the directions contained in the decree and first the `matador itself should be put to auction. It appears that before the learned Executing Court somehow the non-petitioners did not produce the matador in question and again an order dated 11.2002 was passed by the Executing Court for realizing first by the sale of the matador. It is in these facts and circumstances that a revision petition was filed by the petitioner decree holder challenging the impugned order dated 11.2002. 4. When the matter came up before th s Court on 1.10.2003 this Court passed the following order. "The resp ndent No. 2 is directed to deposit forthwith Rs. 50,000/-with the petitioner bank. He is further directed furnish the complete deta ls of the property movable or immovable of the principal debtor. This order is to be complied with within three weeks from today. "The resp ndent No. 2 is directed to deposit forthwith Rs. 50,000/-with the petitioner bank. He is further directed furnish the complete deta ls of the property movable or immovable of the principal debtor. This order is to be complied with within three weeks from today. However, in case ultimately, the petitioner fails in the revision petition, this amount shall be ordered to be refunded to the non-petitioner No. 2 with interest at the rate of 9% per annum." 5. Inspite of aforesaid order the non-petitio er No. 2 did not comply with the aforesaid direction for the deposit of the amount of Rs. 50,000/-and i stead moved an application. The respondent in the sai application submitted that two FDRs are already with the bank belonging to the non-petitioner No. 2 with the value of Rs 50,000/-and as such instead of the deposit of the amount of Rs. 50,000/-as required vide order dated 15.10 2003 the said two FDRs should be treated as deposit and the balance amount out of the aforesai FDRs may be ordered to be returned to the non-petitioner No. 2. 6. The details of the aforesaid FDRs are already available in the impugned order dated 11.2002 and as such in the facts and circumstances it is hereby ordered that the petitioner bank would be free to realize the amount of Rs. 50,000/-as directed by the Court on 110.2003 out of FDRs No. 213/96 dated 9.1996 for an amount of Rs. 55,857/-of the non-petitioner No. 2 as agreed by the non-petitioner No. 2. 7. The non-petitioner No. 2 undertakes that he would furnish to the bank the matador bearing registration No. RRD 1851 for being auctioned within a period of one week and the bank would be free to auction the same in accordance with the terms of the decree. 8. The non-petitioner No. 2 further submits that he is prepared to submit a solvent security for the realisation of the balance decretal amount which may remain after the adjustment of Rs. 50,000/-as indicated above and the sale price that may be fetched after the auction/sale of the Matador bearing registration No. RRD 1851. 8. The non-petitioner No. 2 further submits that he is prepared to submit a solvent security for the realisation of the balance decretal amount which may remain after the adjustment of Rs. 50,000/-as indicated above and the sale price that may be fetched after the auction/sale of the Matador bearing registration No. RRD 1851. It is submitted by the learned Counsel for the non-petitioner No. 2 that remaining amount under the FDRs which are available with the Bank may be allowed to be returned to the non-petitioner No. 2 as they are his retirement benefits and in terms of the decree dated 1.12.1994 as well as the order passed in the revision by this Court dated 29.4.1999 he is entitled to the return of the FDRs. 9. In the facts and circumstances of the present case, it is hereby ordered that upon the non-petitioner No. 2 submitting the Matador bearing registration No. RRD 1851, for being auctioned to the Bank-decree holder within a period of one week of the submission of certified copy of this order to the Court below and furnishing a solvent security to the satisfaction of the Executing Court after notice to the non-petitioner by the non-petitioner No. 2 for the remaining amount, the learned executing Court would direct the release of the FDRs by the decree-holder to the non-petitioner No. 2. 10. In this view of the matter, the impugned order is set aside and it is hereby ordered that in terms of the decree and the order passed by this Court on 1.10.2003, an amount of Rs. 50,000/-out of the FDRs be adjusted in the first instance. On furnishing of the Matador bearing registration No. RRD 1851 and the solvent security before the learned executing court by the non-petitioner No. 2, the remaining amount under the FDRs would be released to the non-petitioner No. 2. On furnishing of the Matador, the decree-holder shall be entitled to realise the amount under the decree by auction/sale of the said Matador and by realising the balance decretal amount, incase, the same remains outstanding through the solvent security which may be furnished by non-petitioner No. 2 for the satisfaction of the decree, before the learned Court below. On furnishing of the Matador, the decree-holder shall be entitled to realise the amount under the decree by auction/sale of the said Matador and by realising the balance decretal amount, incase, the same remains outstanding through the solvent security which may be furnished by non-petitioner No. 2 for the satisfaction of the decree, before the learned Court below. In the event of the Matador and the solvent security being furnished as aforesaid within a period of one week of furnishing of the certified copy of this order, remaining amount under the FDRs which are the retirement benefits of non-petitioner No. 2 shall be returned to non-petitioner No. 2. 11. With the aforesaid directions this revision petition along-with stay petition is disposed of as indicated above.