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2006 DIGILAW 1341 (MP)

Mithu Lal Soni v. Ramlal Soni

2006-11-27

A.M.NAIK

body2006
ORDER 1. The petitioner instituted a suit against respondent No. 1 for eviction and recovery of rent which was registered as C.S. No. 47-A/99. The suit was decreed on 11.1.2000 by the Court of Additional Civil Judge Class-I, Rewa and a decree for Rs. 11,558.90 paise was passed in favour of the petitioner against the respondent No. 1. The decree was put into execution and the belongings of respondent No. 1 were attached by the Court on 21.6.2001 which included a full size T.V. of E.C. Company, an Atlas cycle, one H.M.T. Sona wrist watch, one wall clock, a full size cooler, one wooden counter and one ceiling fan. These items are mentioned in the seizure memo contained in Annexure P-2. The total cost was estimated at Rs. 12,000/- and the items were handed over on Supurdaginama contained in Annexure P-3 on the condition that he shall have to produce the same whenever, directed and in case of failure the estimated cost would be recovered from him. 2. On 17.12.2002 the respondent No. 2 informed the Court vide application under section 151 of the Civil Procedure Code that the goods kept by him have been damaged with the passage of time. He claimed Rs. 100/- towards freight for bringing the items to the Court and further claimed the rent for the period during which his room was occupied by the goods. The goods were auctioned which fetched merely Rs. 600/-. The petitioner submitted an application that the respondent No. 2 has changed the goods and the decretal amount is liable to be recovered from him. This application has been dismissed by the learned trial Court vide order dated 17.2.2003 contained in Annexure P-7 against which this petition has been preferred. 3. As per office note dated 6.7.2006 the respondent No. 2 has been duly served. He did not choose to remain present. Consequently, the petitioner who was present in person, was alone heard. 4. Considered the submissions and perused the record. 5. Undisputedly, the decree for Rs. 11,568.90 paise has been passed in favour of the petitioner against the respondent No. 1 and various goods of the respondent No. 1 were attached, as detailed in Annexure P-2. They were, admittedly, handed over to the respondent No. 2 and its total cost was estimated at Rs. 12,000/- which was acknowledged by the respondent No. 2 vide Supurdaginama contained in Annexure P-3. They were, admittedly, handed over to the respondent No. 2 and its total cost was estimated at Rs. 12,000/- which was acknowledged by the respondent No. 2 vide Supurdaginama contained in Annexure P-3. It is a matter of common knowledge that a full size T.V. of E.C. Company, an Atlas cycle, H.M.T. Sona wrist watch, wall clock, full size cooler and ceiling fan (except wooden counter) must not be of perishable nature and if kept inside a room will not get converted in scrap merely within a period of one and half years i.e. from the date of Superdaginama of 21.6.2001 to 17.12.2002 (being the date of application under section 151 of Civil Procedure Code). The items might have been in working condition or not but, definitely, the description of manufacturing company would remain the same and the inner components of these items would remain the same. Learned Executing Judge was under an obligation to tally the items handed over by the respondent No. 2 for auction with the details mentioned in the memo of attachment and Supurdaginama contained in Annexures P-2 and P-3. If the particulars of the manufacturing company are different, the respondent No. 2 would be guilty of criminal breach of trust and would be liable to be prosecuted for the same. In such a situation, apart from the aforesaid, the estimated cost of Rs. 12,000/- would also be liable to be recovered from him. The items were kept in a room as per the statement of respondent No. 2 and it is inconceivable that a full size T.V. of E.C. Company, an Atlas cycle, H.M.T. Sona wrist watch, wall clock, full size cooler and ceiling fan kept in a room will get converted into scrap within a period of about 18 month. These are the items having inner valuable components. They must have contained the particulars like body number, frame number, machine number etc. embossed by the respective manufacturing company. RMT wrist watch, cycle, full size cooler and ceiling fan must have been made of iron and were not of perishable nature. It was the bounden duty of the Executing Judge to ensure that the Nazir or person entrusted with the work of execution ought to have tallied the goods with the attachment list and Supurdaginama while taking possession and before putting them for auction. It was the bounden duty of the Executing Judge to ensure that the Nazir or person entrusted with the work of execution ought to have tallied the goods with the attachment list and Supurdaginama while taking possession and before putting them for auction. In case, if this has not been done, the concerning Nazir, or the person entrusted with the work of execution will also be liable and recovery may also be directed against them in accordance with law. If the specification/particulars were not noted down at the time of attachment and handing over them to the respondent No. 2, the erring employee may be also made liable in proportionate manner, to make good to the decree-holder after due enquiry. The Executing Court cannot be permitted to act in such a casual and non-serious manner when the respondent No. 2, either singly or in connivance with the employee of execution section, is trying to give eye wash to the Executing Court by saying that the goods with the aforesaid descriptions have been damaged merely with the passage of one and half years. One must understand that when the important pillar of judiciary out of the three pillars of our Constitution reposes trust in a person by entrusting the goods to him as a Supurdagidar, the faith of thousands of litigants cannot be allowed to be shattered by permitting such Supurdagidar to play tricky and foul game. The learned Executing Judge does not appear to have applied his mind to all to the nature of items which were handed over to the respondent No. 2 on Supurdaginama. It is un-understandable that how the executing Court could believe that the items especially like a full size T.V. of E.C. Company, Atlas cycle, R.M.T. Sona wrist watch, wall clock, full size cooler (which obviously must have contained an exhaust fan and water pump) and ceiling fan could get damaged merely by keeping them in a room for one and half years and got converted in scrap fetching merely Rs. 600/-. 600/-. The executing Court must understand that it is not merely a decree for money which would serve purpose of the plaintiff/decree holder but it would be the successful execution and satisfaction of the decree which would make the existence of the Court meaningful and any tricky obstruction in the execution in this manner must be thwarted in a stem manner in accordance with law. 6. In view of the aforesaid discussion, this petition is allowed. The learned executing Judge is directed to re-decide the application dated 10.2.2004 contained in Annexure P-4 after holding an enquiry in due manner that whether the respondent No. 2 had re-delivered items to the Court for auction which were handed over to him under the Supurdaginama, marked as Annexure P-3. If there is a single variation in the particulars of any of the items handed over to him under the Supurdaginama vide Annexure P-3 and the items returned by him to the Court for putting them in auction, learned trial Judge shall initiate the proceedings of criminal breach of trust against the respondent No. 2. Apart from this, the Executing Judge in case of finding any variation shall proceed to recover differential amount between the estimated cost and amount fetched by the auction, from respondent No. 2 in accordance with law. Role of Nazir and other person/employer entrusted with execution may also be scrutinized and action may also be taken, if found guilty. The petitioner is also awarded cost of Rs. 1,000/- which would be payable by the respondents jointly or severally. The impugned order is set aside to the extent of dismissal of the application dated 10.2.2004 of the petitioner under Order 21 Rule 43 of the Civil Procedure Code which has been directed to be re-decided in the aforesaid manner in accordance with law within a period of three months. Since the petitioner appeared in person, Registry is directed to send copy of this order to the petitioner at his address mentioned in the cause title. Copy of this order be also sent to the Registrar (Vigilance) who shall inform me about the progress with respect to the action directed hereby. Petitioner in person.