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2023 DIGILAW 1206 (AP)

Bompanapalli Naga Suseela v. Saladi Tatarao

2023-08-17

B.S.BHANUMATHI

body2023
JUDGMENT 1. The revision petitioner, among the other contentions, mainly stressed that the decree cannot be executed by the legal representative of the deceased DHr as the succession certificate was issued in a petition barred by limitation. 2. This civil revision petition is filed under Sec. 115 of the Code of Civil Procedure, 1908 ('CPC') against the order dtd. 27/7/2022 allowing E.P. No.34 of 2019 in O.S. No.11 of 2008 on the file of the Court of Senior Civil Judge, Amalapuram, passed under Order XXI Rule 22 CPC in the execution petition filed under Order XXI, Rule 48 CPC for attachment of the salary of the judgment debtor (JDr) for realization of the decreetal amount. 3. Heard Sri T.Vishnu Teja, learned counsel for the revision petitioner. 4. The revision petitioner is the JDr /defendant and the respondents are legal representatives of the decree holder (decree holder is the plaintiff). 5. The case of the petitioners is briefly as follows: Sri Saladi Tata Rao, the father of the petitioners obtained a decree on 15/3/2008 against the defendant/JDr before Lok Adalat, Amalapuram, in O.S. No.11 of 2008. As per the decree, the JDr has to pay Rs.1,60,000.00 to the decree holder on or before 31/8/2008, failing which the decree holder is entitled to recover the same with interest at 12% per annum from the date of default till realization. Subsequently, the father of the petitioners died on 21/2/2010 leaving his six children, who are the petitioners 1 to 6 in the execution petition. On 3/8/2013, the wife of Sri Saladi Tata Rao also died. Subsequent to the death of Sri Saladi Tata Rao and his wife Smt. Varalakshmi, the petitioners in the execution petition alone are entitled to recover the amount in the said decree. Therefore, they filed a petition under Sec. 370 of the Indian Succession Act before the Court of Senior Civil Judge, Amalapuram, vide S.O.P. No.120 of 2017 to grant succession certificate to recover the decree debt in O.S. No.11 of 2008. The petition was allowed, and the succession certificate was issued on 17/7/2018. It is the further case of the petitioners that the JDr is working as a School Assistant in the Government Girijana Girls Ashram High School, Singampalli of Rajvommangi Mandal and getting nearly Rs.50,000.00 per month with all allowances, however, the JDr is neglecting to pay the decreetal amount. Hence, the execution petition was filed. 6. It is the further case of the petitioners that the JDr is working as a School Assistant in the Government Girijana Girls Ashram High School, Singampalli of Rajvommangi Mandal and getting nearly Rs.50,000.00 per month with all allowances, however, the JDr is neglecting to pay the decreetal amount. Hence, the execution petition was filed. 6. When the notice was issued under Order XXI Rule 22 CPC, the JDr filed a counter denying the liability under the award and further stating as follows: The JDr discharged debt during the life time of Sri Saladi Tatarao, who failed to return the promissory notes in spite of all repeated demands, but due to pressure of work, the JDr was under the belief of the words of Sri Saladi Tatarao to return them and kept silent, however, subsequent to the death of Saladi Tata Rao in the year 2010, the JDr surprisingly received summons from the Court in O.S. No.88 of 2014 filed by Sri Poppala Ramasurya Bhaskar Rao based on the promissory note allegedly executed by the JDr. When the JDr made enquiries about the same, he came to know that the 2nd petitioner, taking advantage of promissory notes kept with them after the death of his father Tatarao, brought into existence a false promissory note through his friend, Sri Poppala Ramasurya Bhaskar Rao and the said suit was dismissed on 20/11/2015 on contest by the JDr. Later, an appeal was preferred against the said judgment. Again, the 2nd petitioner got filed another suit in O.S. No.22 of 2016 on the file of the Court of Junior Civil Judge, Anantapuram, through his henchmen Sri Adikari Veera Venkata Satya Narayana, and the same was decreed. In pursuance thereto, E.P. No.23 of 2016 was filed for realization of the decreetal amount by attachment and recovery from the salary of the JDr to an amount of Rs.2,40,809.00. Due to the suspension of the JDr from his job, the recovery of salary after six months was stopped. As such, the 2nd petitioner might have filed S.O.P. No.120 of 2017 on 22/6/2017 by bringing into existence the Lok Adalat award in O.S. No.11 of 2008. In fact, the JDr has no amount due under the said award, as stated above. The JDr herein should be added as a party in S.O.P. No.120 of 2017. As such, the 2nd petitioner might have filed S.O.P. No.120 of 2017 on 22/6/2017 by bringing into existence the Lok Adalat award in O.S. No.11 of 2008. In fact, the JDr has no amount due under the said award, as stated above. The JDr herein should be added as a party in S.O.P. No.120 of 2017. Since the JDr was not added to the said proceedings, he has no knowledge about the proceedings. If at all they have any right to recover the debt, they have to join this respondent for receiving the objections, but by concealing the facts and misleading the court, a succession certificate was obtained. The said succession certificate is not binding on the JDr. Moreover, the issue of a succession certificate is barred by limitation since Sri Saladi Tatarao died on 21/10/2010, whereas the petition was filed in the year 2017. The JDr has taken steps to file a revision against the order in S.O.P. No.120 of 2017. After lifting the order of suspension of the JDr, the garnishee of the J.Dr. started recovery from the salary of the JDr to remit it to the account of the Court of Junior Civil Judge in E.P. No.23 of 2016 from January 2020. Therefore, due to the pendency of another attachment against the salary of JDr, the 2nd petitioner/decree holder has no right to proceed against the JDr except for realization of the previous warrant amount as per Sec. 60 CPC. Therefore, the JDr prayed to dismiss the execution petition. 7. After hearing both sides, the execution court allowed the petition and ordered the issue of notice under Order XXI Rule 48 CPC and directed to call for fresh pay particulars of the JDr. It was observed that the grant of a succession certificate is barred by limitation in view of Article 137 of the Limitation Act, however, granting of a succession certificate does not come within the purview of the execution court and that the execution court has no power to question the same, and if the JDr intends to question the certificate, the remedy is to prefer the revision against the same. It is further held that at the stage of enquiry under Order XXI Rule 22 CPC, whether the salary is attachable or not cannot be decided and will be decided later. The execution court rejected the other objections stating that there was no substance. It is further held that at the stage of enquiry under Order XXI Rule 22 CPC, whether the salary is attachable or not cannot be decided and will be decided later. The execution court rejected the other objections stating that there was no substance. Having observed that there are no impediments further in the execution, the petition was allowed and ordered to issue notice under Order XXI, Rule 48 CPC, meanwhile to call for fresh pay particulars of the judgment debtor. 8. Having been aggrieved by the said order, this revision petition is filed. The learned counsel for the revision petitioner/JDr laid heavy stress on the aspect that the succession certificate was barred by limitation and referred to the decision of the Supreme Court in the Case between Sameer Kapoor and another v. State through Sub-Divisional Magistrate South, New Delhi and others (2020) 12 SCC 480 , wherein it was held that a right to get letters of administration under Sec. 228 of the Indian Succession Act, 1925 (in short 'the Act, 1925') or in an application under Sec. 276 of the Act, 1925 the period of limitation is governed by Article 137 of the Limitation Act, 1963 and the period of limitation commences from the date when the right to apply accrues. Therefore, drawing analogy from the said observation, he vehemently contended that the petition for issue of succession certificate could not be entertained beyond three years from the date of death of the father of the decree holders. He further submitted that the execution court, having observed that the issue of succession certificate is beyond the period of limitation in the light of the decision of the Supreme Court, fell in error in holding that it cannot refuse the succession certificate and wrongly allowed the execution petition. 9. In spite of posting the matter for hearing, no representation has been made for the respondents 2 to 7. Respondent No.8 is not a necessary party, being garnishee of the judgment debtor. 10. 9. In spite of posting the matter for hearing, no representation has been made for the respondents 2 to 7. Respondent No.8 is not a necessary party, being garnishee of the judgment debtor. 10. Thus, four main considerations are (one) whether the JDr can resist the execution of the decree by the legal representatives in this case on the ground that the issuance of the succession certificate was barred by limitation, (two) whether the JDr can contend in the execution proceedings about forgery of the suit promissory note, (three) whether the JDr can take a plea of discharge of the decreetal amount out of court in the execution proceedings filed by the DHr for realization of the decreetal amount and (four) whether the relief of attachment of salary of the JDr is barred by Sec. 60 CPC in view of the pendency of attachment of salary of this JDr in the execution petition by another DHr. 11. As can be seen from the counter filed by the JDr, a representation was made that steps would be taken to challenge the issue of succession certificate, but there is no record that it has been challenged or that it was set aside. Therefore the succession certificate issued has become final. The execution court cannot decide that the succession certificate was ordered on a petition filed beyond the period of limitation, however, the execution court has made an observation in this regard. Furthermore, since the question of limitation in this case is a mixed question of fact and law, without referring the dates, the execution court observed that the issue of succession certificate is barred by limitation. Anyhow, it is erroneous for the execution court to make an observation that the issue of succession certificate is barred by limitation. Even when a decree granted in a suit barred by limitation, the execution court cannot go beyond the decree to refuse execution as if the decree is a nullity being illegal i.e. against law, it is not permissible to hold that the petition field for issue of the succession certificate was barred by law of limitation. Even when a decree granted in a suit barred by limitation, the execution court cannot go beyond the decree to refuse execution as if the decree is a nullity being illegal i.e. against law, it is not permissible to hold that the petition field for issue of the succession certificate was barred by law of limitation. This view is fortified by the decision of the Supreme Court in Ittavira Mathai vs Varkey Varkey And Another ( AIR 1964 SC 907 ) wherein it was held that even assuming that the suit was barred by time, it cannot be contended that the decree is a nullity and can be ignored in a subsequent litigation. It was held in the cited decision as follows: "Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned Counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities....... All that the decision relied upon says is that Sec. 3 of the Limitation Act is peremptory and that it is the duty of the Court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Code of Civil Procedure. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." As such, the revision petitioner cannot contend the same ground in this revision petition. 12. When there is a succession certificate issued in favour of the decree holders who filed the execution petition, the executability of the decree by the legal representatives of the deceased DHr cannot be challenged under Order XXI, Rule 22 CPC. 13. The other grounds raised in the counter about the transactions between the deceased and the judgment debtor and about the creation of false promissory note cannot be raised in execution of the decree. 14. Insofar as the discharge of the decreetal amount is concerned, the same cannot be pleaded in view of the bar under Order XXI Rule 2 (3) CPC, that a payment or adjustment made out of court not been certified by court shall not be recognized by the executing court. 15. Insofar as the objection raised by the JDr that his salary cannot be attached in view of prohibition under Sec. 60 CPC by virtue of the other subsisting attachment of salary and recovery of the amount, the execution court has deferred its finding on the said objection stating that it would be considered in the future proceedings and it cannot be decided at this stage of the enquiry under Rule 22 CPC. Sec. 60 CPC-Property liable to attachment and sale in execution of decree: (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely: (a) xxxx (b) xxxxx (c) xxxxx (d) xxxxx (e) xxxxx (f) xxxxx (g) xxxxx (h) xxxxx (i) salary to the extent of the first one thousand rupees and two third of the remainder in execution of any decree other than a decree for maintenance]: Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree. (ia) one-third of the salary in execution of any decree for maintenance; 16. Since the subsisting attachment claimed by the judgment debtor is with effect from January 2020 in E.P. No.23 of 2016 on the file of the Court of Junior Civil Judge, Anaparthi, after recovery of the said amount for about 24 months, the period would be completed by December, 2021 and thereafter there must be a break of 12 months which spreads over the year 2022. Therefore, by now, the salary of the judgment debtor would be free from protection under Sec. 60 CPC, if there are no other subsisting attachments. As such the revision petition is not maintainable and is liable to be dismissed. The execution court can proceed with the enquiry after serving of the notice which was impugned in the revision. 17. Therefore, by now, the salary of the judgment debtor would be free from protection under Sec. 60 CPC, if there are no other subsisting attachments. As such the revision petition is not maintainable and is liable to be dismissed. The execution court can proceed with the enquiry after serving of the notice which was impugned in the revision. 17. In the result, the revision petition is dismissed. No costs. Pending miscellaneous applications, if any, shall stand closed.