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2013 DIGILAW 382 (UTT)

SHYAM NARAIN MISHRA v. D. S. BISHT AND SONS

2013-06-26

Prafulla C.Pant

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. Heard. 2. This revision is directed against order dated 29.05.2001, passed by the executing court (Civil Judge Senior Division/VI Fast Track Court, Nainital) in Execution Case No. 78 of 1978. 3. Brief facts of the case are that the Civil Suit No. 27 of 1953 was filed by the plaintiffs (decree holders) for accounting, and recovery of money against the defendants (judgment debtors). A preliminary decree was passed in the said suit for recovery of an amount of ‘ 49,810/- on 24.09.1957. Final decree was passed on 17.09.1974 for an amount of ‘ 2,71,050. After the decree passed by the trial court Execution Application No. 78 of 1978 was filed by the plaintiffs before the trial court. Meanwhile, the defendants filed First Appeal No. 228 of 1975 before Allahabad High Court. A cross appeal was filed by the plaintiffs. Both appeals were decided by Allahabad High Court vide its judgment and decree date 13.09.1984, and it was directed that the defendants shall pay ‘ 3,89,243.81 along with 6 % interest per annum thereon. After the decree was passed by the Allahabad High Court, an amendment was sought by the decree holders in the Execution Application No. 78 of 1978 for recovery of enhanced sum of decretal amount in the light of the appellate court’s order. Said amendment appears to have been allowed on 12.12.1986. Thereafter, property of the judgment debtors was attached and court issued declaration for auction for sale of the property, for recovery of an amount of Rs. 3,72,473.41 on 23.11.1998. At this stage of the execution, judgment debtors deposited before the executing court said sum of Rs.3,72,473.41, apart form Rs. 3,000/- cost of the execution. However, the application 136C was moved by the decree holders on 06.08.1999 for recovery of remaining interest by seeking further amendment in the execution application against which the judgment debtors filed objection 154C. The trial court after hearing the parties rejected the application 136C and struck of the execution in full satisfaction of the decree. 4. Learned counsel for the revisionists (decree holders) argued that the executing court has erred in law in strucking off the Execution Application in full satisfaction of the decree. The trial court after hearing the parties rejected the application 136C and struck of the execution in full satisfaction of the decree. 4. Learned counsel for the revisionists (decree holders) argued that the executing court has erred in law in strucking off the Execution Application in full satisfaction of the decree. On the other hand learned counsel for the respondents (judgment debtors) contended that since the amount for which the execution was moved had already been paid by the judgment debtors, as such the impugned order suffers from no illegality. 5. I have considered the rival submissions of learned counsel for the parties. It is settled principle of law that decree passed by the trial court gets merged into the decree passed by the appellate court. In the present case, the plaintiffs had filed execution application much before the appeal was decided by the Allahabad High Court. Though, normally amendments are not allowed in the execution applications, but in exceptional cases the amendments can be allowed to be made in view of the decree passed by the appellate court, after the execution application has been filed on the basis of the decree passed by the trial court. This view gets support from the law laid down in Bhoganadham Seshaiah vs. Budhi Veerabhadrayya and others AIR 1972, Andra Pradesh page 134 (Full Bench). It is not disputed in the present case that amount of Rs. 3,72,473.47 and cost of execution (‘ 3,000/-) was deposited by the judgment debtors on the date of the declaration for auction issued for sale of the attached property of the judgment debtors. 6. In the above circumstances, the executing court should have struck off the execution only to the satisfaction of Rs. 3,72,473.47, not for full satisfaction, as still the amount of interest in the light of the appellate court decree was yet to be recovered. But the executing court struck off the execution in full satisfaction. It is also pertinent to mention here that the execution court in the impugned order dated 29.05.2001, clearly observed that the decree holders are at liberty to move fresh execution application in respect of the remaining amount for which there was no prayer in execution application originally moved by the decree holders. 7. It is also pertinent to mention here that the execution court in the impugned order dated 29.05.2001, clearly observed that the decree holders are at liberty to move fresh execution application in respect of the remaining amount for which there was no prayer in execution application originally moved by the decree holders. 7. For the reasons as discussed above, this revision is disposed of, with the observation that the execution case No. 78 of 1978 filed before Civil Judge (Senior Division) Nainital stands struck off in satisfaction of Rs. 3,72,473.47, and the cost of said execution case only. The impugned order to the extent it is observed that the execution stood struck off in full satisfaction, stands modified accordingly.