HARI MOHAN BEHCRA v. STATE BANK OF INDIA, BERHAMPUR BRANCH
2007-01-09
A.S.NAIDU
body2007
DigiLaw.ai
A. S. NAIDU, J. ( 1 ) JUDGMENT-DEBTOR No. 3 in Execution Petition No. 18 of 1992 in respect of a decree passed in Money Suit No. 1 of 1983/18 of 1973 - BSJC passed by the then Addl. Subordinate Judge. Berhampur seeks to assail the order dated 29-7-2004 passed by the Civil Judge (SD), Aska in. A. No. 58 of 2003 arising out of the aforesaid Execution Petition. By the aforesaid order the executing Court has rejected a petition filed by the petitioner J. Dr. No. 3 under Section 47 read with Section 151, CPC. ( 2 ) ADMITTEDLY M/s. Utkal Watch and Radio Stores Pvt. Ltd. . defendant No. 1 in the aforesaid Money Suit, through its persons in management had availed certain loans from the plaintiff-State Bank of India, Berhampur Branch. The said loans having not been repaid in time, the aforesaid Money Suit was filed for realization of the dues of the Bank. The suit was decreed for Rs. 2,81,266. 87 ex parte against defendants 1 to 5 and 9 and on contest against defendants 6 to 8. The said decree attained finality no appeal having been preferred against that. In the year 1992, the Bank filed the aforesaid Execution Proceeding for execution of the decree. During pendency of the Execution Proceeding, in consonance with an order passed on 5-7-2002 by the Court below, the properties of the judgment-debtors were put to auction and the Execution Proceeding continued for realization of the balance decretal dues. ( 3 ) WHILE matter stood thus, the aforesaid. A. was filed by the present petitioner J. Dr. No. 3 challenging the maintainability of the Execution Proceeding. He prayed to dismiss the said Execution Proceeding, enquire into the matter afresh and award damages in his favour for the loss caused to him. His main contention was that the properties pledged with the Bank having not been put to auction for quite a long stretch of time, there was depreciation of the value thereof and consequently he is made to suffer. ( 4 ) ACCORDING to learned counsel for the petitioner, if steps for selling the said pledged properties would have been taken by the decree-holder Bank in time, the said properties would have fetched more value and thereby lessening his liability. It is submitted that due to laches of the decree-holder bank the judgment-debtor is not to suffer.
( 4 ) ACCORDING to learned counsel for the petitioner, if steps for selling the said pledged properties would have been taken by the decree-holder Bank in time, the said properties would have fetched more value and thereby lessening his liability. It is submitted that due to laches of the decree-holder bank the judgment-debtor is not to suffer. ( 5 ) BE that as it may, the very object of section 47, CPC is to prevent multiplicity of litigations and to decide the objections at the beginning stage of an Execution Proceeding. In the case at hand, it is not that the decree sought to be executed was passed by a Court having no jurisdiction or that it is a nullity in the eye of law. The decree is very clear and unambiguous, and that too the same has attained finality. It is well settled in law that an executing Court cannot traverse beyond the decree unless the same is a nullity or without jurisdiction. In a proceeding under Section 47, CPC, an executing Court is only required to deal with the questions relating to discharge or satisfaction of the decree. ( 6 ) ACCORDING to Mr. Ramdas, learned counsel for the opposite party-Bank, the court below has taken all the aspects into consideration and the impugned order having not suffered from any infirmity or illegality the same may not be interfered with, by this Court. ( 7 ) AFTER hearing the learned counsel for the parties and perusing the materials available on record this Court finds that the pledged properties were put to auction after hearing the parties in course of execution of the decree. The properties were sold at the best price fetched and the Court below rightly understood the scope and ambit of section 47, CPC and has answered all the points raised before it. This Court is satisfied that the executing Court has not committed any error of law in passing the impugned order and the same does not call for any interference. ( 8 ) LEARNED counsel for the petitioner-J. Dr. No. 3, however, submits that liberty may be granted to the petitioner to realize damages from the decree-holder Bank as the petitioner has to sustain huge loss due to laches of the Bank in selling away the pledged properties in time as a consequence of which the said properties fetched less value.
No. 3, however, submits that liberty may be granted to the petitioner to realize damages from the decree-holder Bank as the petitioner has to sustain huge loss due to laches of the Bank in selling away the pledged properties in time as a consequence of which the said properties fetched less value. This Court observes that it is open to the petitioner to pursue such remedy after closure of the Execution Proceeding. The executing Court is directed to close the Execution Proceeding as expeditiously as possible. As it is submitted by the learned counsel for the petitioner that in the process of Execution Proceeding, a residential building which is the only dwelling house of the petitioner is sought to be sold for realization of the balance dues of the Bank, and consequently the petitioner will be put to great prejudice, harassment and irreparable injury. It is also submitted that besides the said building there are other properties of the judgment-debtors which if sold will fetch sufficient amount to satisfy the balance decretal dues payable to the decree-holder bank and that step may be directed to be taken first. This Court accordingly directs that in the event the petitioner puts in a petition before the Court below in that regard offering other properties, the said Court will duly consider the same and pass necessary orders in consonance with law. With the aforesaid direction /observation the Writ Petition is disposed of. Order accordingly. .