T. Selvi v. M/s. Margadarsi Chit Pvt. Ltd. Chennai
2010-06-30
G.RAJASURIA
body2010
DigiLaw.ai
Judgment :- Inveighing the order dated 10.09.2009 made in E.P. No. 2246 of 2008 in ARC No. 983 of 2007 on the file of the X Assistant Judge, City Civil Court, Chennai, this civil revision petition is focussed. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The first respondent herein obtained the award dated 22.05.2008 for recovery of money as against five persons, viz., R2 herein and the revision petitioners 1 to 4. Thereafter E.P. No. 2246 of 2008 was filed for attaching the salary of those Judgment Debtors. Notice was ordered by the Executing Court even though no notice was contemplated as per Order XXI Rule 22 of CPC, in view of the award sought to be executed was within two years, yet, in the interest of justice, the Executing court ordered notice. Whereupon one and the same counsel appeared for all the five Judgment Debtors on 22.01.2009 and he took time for counter/payment. Subsequently, the matter was adjourned from time to time and part payments were also made, but no counter was filed. On 27.04.2009, the Executing court passed order as under: "On endorsement made on this petition by counsel for decree-holder, part satisfaction for Rs. 4,000/-recorded. For further payment of not less than Rs.10,000/- for every hearing. Call on 23.6.2009 for further payment. Sd/- X Asst. Judge" Then, the E.P was adjourned from time to time and part payments were also made. On 10.09.2009, the executing court passed order thus: "On endorsement made on this petition by counsel for Decree-Holder, part satisfaction for Rs. 5,000/- only is recorded. The amount pending for recovery is Rs. 1,34,875, whereas this Judgment Debtor pays meager amount. Therefore, J.D. was directed to pay not less than Rs. 10,000/- for each hearing. Instead of complying the order J.D. filed E.A.5287/09 to permit him to pay Rs.1000/- per month. That petition was dismissed on 28.8.2009. As on today J.D. had not complied the orders. Attach the salary of J.D. 1 to 5 through pro order through court and post by 4.11.2009. sd/- X ASST.JUDGE" 4.
10,000/- for each hearing. Instead of complying the order J.D. filed E.A.5287/09 to permit him to pay Rs.1000/- per month. That petition was dismissed on 28.8.2009. As on today J.D. had not complied the orders. Attach the salary of J.D. 1 to 5 through pro order through court and post by 4.11.2009. sd/- X ASST.JUDGE" 4. Being aggrieved by and dissatisfied with the said order dated 10.09.2009, this revision is filed by Judgment Debtors 2 to 5 on various grounds, the gist and kernel of them would run thus: (i) The lower court did not give any opportunity to the Judgment Debtors to file counter and contest the matter. Even before hearing the judgment debtors on merit, attachment of their respective salaries were ordered and now, the Drawing Disbursing Officers are recovering the dues as per the court order and depositing it in court. (ii) The lower court also went to the extent of ordering Judgment Debtor-1 to pay every hearing a sum of Rs. 10,000/-, on an earlier occasion, which was against the principles of natural justice. Even though the Judgment Debtor is willing to pay the entire E.P. amount, orders were passed as against the revision petitioners/Judgment Debtors 2 to 5. Accordingly, the revision petitioners pray for setting aside the order of the lower court. 5. The learned counsel for the revision petitioners, placing reliance on the grounds of revision would develop his argument to the effect that even after passing such impugned order dated 10.09.2009, the lower court simply posted the matter for counter and in fact, before passing the order dated 10.09.2009, opportunity should have been given to the petitioners to file counter. As such, the lower court violated the principles of natural justice. The Drawing Disbursing Officers issued proceedings quite against law and are harassing the Judgment Debtors. Accordingly, the learned counsel for the revision petitioners, prays for setting aside the order of the lower court and for remitting the matter back to the lower court with a direction to receive the counter of the revision petitioners and pass orders after hearing them on merits. 6.
Accordingly, the learned counsel for the revision petitioners, prays for setting aside the order of the lower court and for remitting the matter back to the lower court with a direction to receive the counter of the revision petitioners and pass orders after hearing them on merits. 6. Whereas the learned counsel for the first respondent/decree holder, by way of contradicting and challenging the arguments as put forth on the side of the revision petitioners/Judgment debtors 2 to 5 would submit his arguments, the warp and woof of them would run thus: The lower court in fact, ought not to have ordered notice at all to the judgment debtors, but it did so. After keeping the E.P for nearly 10 months, ultimately, the executing court passed order of attachment of salary and absolutely, there is no rhyme or reason on the part of the Judgment Debtors/revision petitioners to contend that no opportunity was given to file counter. Within that ten months or nine months time after their appearance before the lower court, they could have very well filed counter; but they did not choose to do it and they even started making part payments and ultimately they by their own conduct invited the order dated 10.09.2009 on them. Had they been diligent in paying at least the instalments regularly, the court would not have passed the attachment order. Hence, absolutely, there is no reason for this court to interfere in the revision. 7. The point for consideration is as to whether there is any infirmity or illegality in the order passed by the lower court? 8. At the outset, itself I would like to recollect the maxim – Execution juris non habet injuriam – The execution of law does no injury. However, the Code of Civil Procedure contemplates that decrees of the court should be executed with due diligence. In the interest of justitia piepoudrous- speedy justice, in this case, the admitted endorsements made by the Executing Court ever since 22.01.2009 till 10.09.2009 would bespeak in support of the contention on the side of the decree holder that ample opportunity was given to the judgment debtors. 9. I also would like to cite the relevant maxim here, - Ubi jus, ibi remedium – Where there is a right, there is a remedy.
9. I also would like to cite the relevant maxim here, - Ubi jus, ibi remedium – Where there is a right, there is a remedy. It is said that the rule of primitive law was the reverse: Where there is a remedy, there is a right. The revision petitioners must be in a position to explain and expound as to how they are entitled to file counter in the execution proceedings for recovery of money after a period of more than nine months and that too, without availing such nine months opportunity and even in a suit 30 days formula is contemplated under Order VIII Rule 1 of CPC. 10. Here, there is absolutely no iota or shred, miniscule or jot, molecular or shard of reason to display and demonstrate that nine months time, which was granted by the lower court for filing counter was not sufficient in the E.P. As such, the records would speak by itself that the Judgment Debtors are not entitled to any more time to file counter. No doubt, wittingly or unwittingly even after passing the order dated 10.09.2009, the lower court simply posted the execution proceedings for counter and that would not in any way enure to the benefit of the revision petitioners to get the order dated 10.09.2009 set aside. 11. The next phase of the contention on the part of the Judgment Debtors was that the Drawing Disbursing Officers in the absence of any specific amount specified by the executing court, started recovering huge amount from their salary leaving them high and dry. I am fully aware of the fact that it has now become a human rights problem that a debtor should not be harassed in an inhuman way by the creditors and to that effect even there are international treaties including the United Nations directives also in this connection. But in this case, I am at a loss to understand in what manner the Drawing Disbursing Officers went wrong in not adhering to Section 60 of the CPC. 12. It is also a trite proposition of law that in pari materia with Section 60 of CPC in Government Rules also there are corresponding provisions and on receipt of the court order the Drawing Disbursing Officers are calculating the attachable portion of the salary and attaching that.
12. It is also a trite proposition of law that in pari materia with Section 60 of CPC in Government Rules also there are corresponding provisions and on receipt of the court order the Drawing Disbursing Officers are calculating the attachable portion of the salary and attaching that. Here, both sides also perused the relevant typed set of papers and the calculations made by the Drawing Disbursing Officers and on Judgment Debtors side, they are not in a position to point out as to how such calculations are in violation of Section 60 of CPC. 13. As such, in the absence of any legal injury having been caused to the judgment debtors, I could see no illegality or impropriety in the order passed by the lower court. Accordingly, this revision is dismissed. While dismissing so, I would like to observe that it is a case, in which for one and the same E.P amount, the salaries of several persons, viz. five judgment debtors are attached and in such a case, the executing court is directed to maintain accounts and monitor the same and see that over and above the E.P.amount is not recovered from them. 14. With the above direction, this revision is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.