Bank of
Baroda Vs. R.M. Patwa & Anr [1996] INSC
56 (12 January 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 AIR 1662 1996 SCC (2) 468 JT 1996 (2) 35 1996 SCALE (1)727
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
It is
rather very strange and surprising that the High Court has hijacked the
execution proceedings, converted the execution proceedings into case and counter
cases and granted decree/order even between strangers to the execution
proceedings in its revisional jurisdiction under Section 115 of the CPC. The
facts are very simple but the learned Judge has made them complicated ones. The
appellant-Bank had obtained a money decree against the first respondent R.M. Patwa,
proprietor, M/s. Indian Crude Corporation, Indore and another for a sum of Rs.55,000/- with interest at 9% per annum and
future interest by decree dated April 6, 1981. The appellant filed an execution application-case No. 7823
in Civil Suit No36.77-B/76-81. Therein the judgment debtor made an application
under Section 151 CPC on March
4, 1986 with a request
that amounts lying to the credit of the second respondent G.K.Kakkani,
Proprietor, M/s. Oriental Traders lying with the appellant-decree holder, may
be adjusted towards the decree debt. It is now clear from the facts that there
is a dispute between the appellants and Kakkani and a writ petition filed under
Article 226 in Bombay High Court for recovery of the amount was dismissed; SLP
was also dismssed by this Court. The Additional District Judge by his order
dated May 2, 1992 directed adjustment as prayed for.
When
the appellant carried the matter in revision, the High Court in Civil Revision
No. 297/92, dated 10.5.1995 has given in paragraph 11 certain directions in a
confused fumbling way and ultimately disposed of the revision in the light of
the directions contained therein. On an analysis of the directions they would
run like this:
[i]
the amount received from the Prothonotary, High Court of Bombay with interest
payable thereon computable as on March 31, 1986 and lying in the account -of
the second respondent Kakkani be adjusted to the decree debt due and payable by
the first respondent;
[ii] the
amount computed was on that date would be Rs.5,37,017-16 ps. and after
adjustment of the said amount,the appellant was directed to pay over the
balance amount to Kakkani with interest at 19% till the date of the payment.
[iii] the
judgment-debtor R.M. Patwa was directed to reimburse the amount adjusted by the
Bank to the second respondent within three months thereafter. The Bank was
directed to forego the interest payable on the decree amount or any amount
thereof. Calling these directions in question, this appeal has been filed.
It has
been contended for the appellant-Bank that the High Court has travelled beyond
the revisional jurisdiction under Section 115 CPC and granted decrees and set
off. He contended that in money decree recoverable from Patwa, admittedly, the
High Court has converted this money decreeinto a decree in favour of the second
respondent which is impermissible under the law.
Shri
H.N. Salve, the learned senior counsel appearing for the second respondent
contended that the Bank being anationalised Bank and having had an account of
the second respondent with it, is bound under law to either pay back the amount
to him or adjust the amount payable towards the decrec debt of the first
respondent. Admittedly, there was some amount lying to the credit of the second
respondent with the Bank. The said amount ought to be either given to the
second respondent or adjusted to the decree debt of the first respondent in
terms of the undertaking given by the second respondent. The High Court,
therefore, has donejustice to the parties and that there is no illegality in
the action.
Having
considered the respective contentions, the only question for consideration is
whether the High Court or the executing Court could go into these controversies
and direct adjustment against the will of the decree-holder. It is settled law
that the decree holder is entitled to proceed in execution against the
judgment-debtor in the manner prescribed under Order 21 of the CPC. In
execution proceedings the judgment-debtor filed an application under Section
151 to adjust the amounts lying in the account of Kakkani towards the debt
payable by the judgment debtor. It is now clear from the facts that there is an
acute dispute and difference between the entitlements or liabilities between Kakkani,
a stranger to the decree, and the Bank.
Those
liabilities and adjustments cannot be adjudicated in the execution proceedings
between the appellant and the judgment-debtor. A clever device was adopted to
over reach the appellant against the will of the decree holder. The third party
rights cannot be projected for determination in an execution and directions
given on that basis as ordered by the High Court, are unthinkable let alone
legal.
Therefore,
the High Court has not only far exceeded its revisional power under 115 CPC but
also converted these proceedings into claims and counter-claims in execution,
to which the second respondent is not a party and which even first respondent
is not entitled to seek for. The learned single Judge has given directions de
hors the execution. The High Court went ahead to direct the appellant to forgo
interest under a decree which came to exist first. The High Court has acted
against all notions of law in execution.
Accordingly,
we are of the view that the execution Court as well as the High Court in giving
directions have committed manifest and gravest error of law in the process of execution
levied under Order 21 CPC and given directions.
The
orders are, therefore, set aside. The appellant is at liberty to proceed with
the execution in accordance with law. If there are any disputes between the
second respondent and the Bank, it would be open to the parties to have their
rights agitated, if available in accordance with law. The learned Judge is
directed to complete the execution as expeditiously as possible since it is a
long pending case.
The
appeal is accordingly allowed with costs throughout.
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