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2009 DIGILAW 303 (BOM)

Shantaram G. Priolkar v. Ethelvina Caldeira

2009-03-04

C.L.PANGARKAR

body2009
JUDGMENT :- This review application is filed by the petitioner whose writ petition No.28 112004 came to be dismissed in limine. 2. A few facts may be stated thus: The respondent No.1. had filed Special Civil Suit No.197 of 1986 against the respondent No.2 Jaiwanti for possession and arrears of rent. The Trial Court dismissed the suit. The respondent No. II plaintiff, therefore, preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal, allowed the appeal and decreed the suit. The decree was for delivery of possession and arrears of rent of Rs.18,000/-. 3. The decree was put to execution in Execution Application No.29/l995 and warrant for possession was issued. The present petitioner, who is the son of the respondent No.2, filed an application under Order 21, Rule 99 of C.P.C. objecting to the delivery of the possession. This objection application under Order 21, Rule 99 of Civil Procedure Code, came to be dismissed by the Civil Judge by the order dated 13.09.1996 and directed eviction of judgment debtor Jaiwanti as well as objector. The second execution application was filed thereafter bearing Execution Application No.33/ 1998. It appears that in the said second Execution Application, the present petitioner was shown as the Judgment Debtor No.2. The Civil Judge passed an order on this execution application directing both the judgment debtors to deliver the possession and to pay the sum of Rs.18,000/-. This sum was not paid and, therefore, the respondent No. 1/ decree holder sought to attach the salary of the present petitioner. The learned Civil Judge, who heard the application, ordered attachment of the salary of the petitioner, treating him to be the judgment debtor. This order of attachment of salary, passed on 01.04.2004 and the order passed by the Civil Judge on 30.11.1999 was challenged in Writ Petition No.281/2004. 4. When this writ petition came up for admission before this Court, this Court dismissed the said writ petition summarily and being aggrieved by that, this review application is filed. 5. I have heard the learned Counsel for the review petitioner. None appears for the respondent. 6. The learned Counsel for the petitioner, contends before me that the order is wrong due to mistake or error apparent on the face of record. 5. I have heard the learned Counsel for the review petitioner. None appears for the respondent. 6. The learned Counsel for the petitioner, contends before me that the order is wrong due to mistake or error apparent on the face of record. He submits that the Court did not take into consideration the copies of the Judgment and decree placed on record and other orders passed by the Civil Judge in the execution proceedings. This, according to me, has resulted in wrong order of summarily dismissing the petition. He contends about the very first point raised in the writ petition. was as follows: "(1) Whether Execution Application 33/98/ C filed by Respondent No.1 Against Petitioner was maintainable. notwithstanding the fact the Petitioner was neither a party to the Civil Suit No.197 /86/D nor Civil Appeal 4/90 arising from the suit ?" 7. He submits that this point was urged, but was not at all considered by the learned Judge though the point went to the very root. The salary of the petitioner, has been attached treating him as judgment debtor. There is a copy of the judgment and decree passed by the Additional District Judge in R.C.A. No.4/90, which shows that there is only one defendant against whom the decree is passed and she is Jaiwantibai/respondent No.2 in this review petition. There is no second defendant in that suit at all. We have therefore, to see what is the definition of the judgment debtor in the Civil Procedure Code. The 'judgment debtor' is defined in the Civil Procedure Code as under: "'Judgment-Debtor' means any person against whom a decree has been passed er an order capable of execution has been made;" 8. Thus, it is apparent that the defendant/respondent No.2 against whom the decree is passed, alone becomes the judgment debtor. The decree, therefore, can be executed against the defendant/judgment debtor and not a third person, who is not bound by the decree. In spite of this, it appears that the decree holder filed an execution application Exh.F before the Civil Judge showing Jaiwanti as well as the present petitioner to be the judgment debtors. The learned Judge dealing with the application, directed both to deliver the possession and to pay money. The direction to hand over the possession to both, would be justified as the objection of petitioner under Order 21, Rule 99 of C.P.C, was rejected. The learned Judge dealing with the application, directed both to deliver the possession and to pay money. The direction to hand over the possession to both, would be justified as the objection of petitioner under Order 21, Rule 99 of C.P.C, was rejected. However, as far as recovery of money is concerned, no direction could have been given since the petitioner is not the defendant/ judgment debtor at all. The other Judge, who dealt with the application Exh.H for attachment of salary, ignoring the decree itself, directed salary of the petitioner to be attached. Both Judges have passed both the orders without applying mind and caring to look into the Law book. 9. All these documents are very much on the record of the writ petition. The order passed by this Court, clearly goes to show that while dismissing the writ petition, the Court did not look into the documents and did not consider the contention of the petitioner that the salary of the petitioner could not be attached because he is not the judgment debtor at all. This clearly can be treated as a mistake or an error apparent on the face of record. Both the orders of the Civil Judges, were patently illegal. The writ petition so decided, without going into the documents on record and therefore, there is substance in the contention raised, that there is a mistake apparent on the face of record. In view of this, the review application, needs to be allowed. The order of this Court dismissing the writ petition in limine, is set aside and the writ petition is allowed. The order of the Executing Court attaching the salary of the petitioner, is also set aside and the execution application for recovery of money against the petitioner, stands dismissed. The respondent No.1 shall pay the costs of this petition as well as the writ petition and the execution proceedings. Ordered accordingly.