Himachal Pradesh High Court
Himachal Gramin Bank vs Suman Thakur And Another on 12 May, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
Civil Revision No.186 of 2011
Date of Decision: 12.5.2016
____
Himachal Gramin Bank.
.....Petitioner.
Versus
Suman Thakur and another.
of
....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt
Whether approved for reporting?1Yes.
For the Petitioner: Mr. Y. Paul, Advocate.
For the Respondents: Mr. Lovneesh Kanwar, Advocate, for
respondent No.1.
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Sureshwar Thakur, Judge (oral)
The instant revision petition stands instituted by the decree holder/petitioner herein (hereinafter referred to as 'decree holder') whereby it assails the rendition of 11.7.2011 of the learned Civil Judge (Senior Division), Sarkaghat, whereunder the objections preferred before him by the judgment debtors/respondents herein to the execution petition constituted before him at the instance of the decree holder stood allowed. Indisputably the decree holder-
1 Whether reporters of the local papers may be allowed to see the judgment?
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bank filed a suit for recovery of Rs.11,065/- against the judgment .
debtors/respondents herein. The principal Lonee is respondent No.1 herein. The suit came to be decreed by the learned trial court.
In an appeal preferred therefrom by the aggrieved before the learned first Appellate Court, the latter Court affirmed the findings of recorded by the learned trial Court. The concurrently recorded findings of fact against the judgment debtor/respondent No.1 rt herein acquire conclusivity besides finality spurable from the factum of the judgment debtor/respondent No.1 herein not assailing the judgment and decree of the learned first Appellate Court rendered in affirmation to the judgment and decree rendered by the learned trial Court. However, when the decree holder instituted a petition for execution of the decree, an objection anchored upon Ext.OW-1/A stood constituted by the Judgment debtor before the learned Executing Court. Ext.OW-1/A comprises a rendition of the learned Civil Judge (Senior Division), Sarkaghat manifesting the factum of the judgment debtor/respondent No.1 herein in another suit instituted by the decree holder against her, standing concluded by the Court concerned to stand disabled given ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...3...
her minority at the apposite stage to execute any loan document .
with the plaintiff therein, whereupon it concluded of the apposite loan document begetting a stain of nullity sequelling it hence to dismiss the suit of the revisionist/decree holder as constituted against the judgment debtor/respondent No.1 herein.
of
2. The learned counsel appearing for the judgment debtor/respondent No.1 herein contends of the principal loanee, rt who is the respondent No.1 herein also obtaining a loan from the decree holder under a loan document which alike the loan document alluded to in Ext.OW-1/A stood executed at a stage whereat she in Ext.OW-1/A stood construed to be minor, hence incompetent to execute it, whereupon the learned trial Court stood de-facilitated to decree the suit of the plaintiff likewise the extant loan document executed contemporaneously with the loan document construed under Ext.OW-1/A to for reasons afore-stated a nullity also standing ingrained with a cognate vice whereupon the decree holder-revisionist stands de-facilitated to execute the decree rendered in its favour. Necessarily he hence, contends of the rendition of the learned Civil Judge (Senior Division), Sarkaghat ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...4...
comprised in Ext.OW-1/A pronounced in another suit instituted by .
the revisionist herein against respondent No.1 herein, conclusively rests the factum of respondent No.1 herein at the time contemporaneous to the execution of the loan documents apposite to the instant case being a minor thereat, hence disabled to enter of into any contract with the decree holder-bank whereupon no conclusion other than of the decree under execution suffering rt impairment is sequellable. However, the aforesaid submission as addressed before this Court by the learned counsel for respondent No.1 herein and which found favour with the learned Executing Court is omnibusly bereft of any tenacity or legal vigour. It is apparent that the learned Executing Court while accepting Ext.OW-1/A to garner an inference of the decree under execution suffering impairment or hence its being a nullity, has beyond its jurisdictional domain vested in it as an Executing Court, reversed besides nullified the concurrently recorded findings by both the learned trial Court and by the learned first Appellate Court whereat in the apposite proceedings before both the Courts the judgment debtor/respondent No.1 herein had throughout ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...5...
contested the factum of hers being a minor at the time of execution .
by her of the apposite loan documents with the revisionist herein, which efforts however proved abortive. Even the judgment debtor/respondent No.1 herein had omitted to assail the rendition of the learned first Appellate Court whereby it had rendered a of verdict in concurrence with the verdict rendered by the learned trial Court whereunder it decreed the suit of the revisionist/decree rt holder, hence the omissions aforesaid on her part prod an inference of the judgment debtor/respondent No.1 herein accepting the findings recorded by both the Courts below, whereupon she stood estopped to by a sheer legal contrivance besides mis-navigation concert to dislodge besides reverse the findings recorded by two Courts against her by hers untenably placing reliance upon a rendition comprised in Ext.OW-1/A, whereas reliance thereupon by her was wholly unwarranted also any imputation of solemnity by the learned Executing Court to Ext.OW-1/A for hence nullifying the decree of two Courts predominantly when it thereupon proceeded to go behind the decree under execution any endeavour ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...6...
whereof by it when standing legally interdicted, hence was grossly .
unwarranted.
3. Be that as it may, the rendition comprised in Ext.OW-
1/A was of 15.5.1999, whereat an appeal of respondent No.1 against the decree of the learned trial Court was pending before the of learned first Appellate Court. Since during the pendency of the appeal before the learned first Appellate Court against the rt rendition of the learned trial Court, the rendition comprised in Ext.OW-1/A emanated contemporaneously thereat, contrarily when it was open to her to move an appropriate application before the learned trial Court for seeking its leave to adduce by way of additional evidence Ext.OW-1/A for constraining the learned Appellate Court to on its anvil reverse the findings of the learned trial Court, hers omitting to do so, rather hers proceeding to by sheer legal contrivance anchored upon a belated misplaced reliance by her upon Ext.OW-1/A to negate the effect of the conclusive concurrently recorded judgments and decrees of two Courts, is manifestive of hers standing estopped to assail the decree under ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...7...
execution before the learned Executing Court by relying upon .
Ext.OW-1/A. Also hers omitting to at the apposite stage rely upon Ext.OW-1/A succors an inference of hers withholding it from the First Appellate Court for precluding it to view it or sight it wherefrom an inference stands aroused of hers suppressing of vitiations, if any, occurring in the evidence relied upon by her for constraining the Court concerned to render Ext.OW-1/A.
4. rtIt appears that the judgment debtor/respondent No.1 by in-sagaciously instituting objections before the learned Executing Court anvilled upon a misconceived concert untenably erected upon Ext.OW-1/A strived to displace the concurrently besides conclusively recorded decrees of two Courts against her.
Also when the learned Executing Court has beyond its jurisdictional domain vested in it under Section 47 of the Code of Civil Procedure, proceeded to under the impugned order nullify the conclusive concurrently recorded decrees of two Courts hence it has apparently gone behind the decree under execution whereupon its impugned rendition stands stained with a gross manifest legal error. Unless a conclusive concurrently recorded decree of two ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...8...
Courts stood reversed by the Court of competent jurisdiction on the .
judgment debtor/respondent No.1 instituting a separate suit before it with an embodiment therein of an apposite averment of the decree standing obtained by fraud, hence its standing vitiated, vitiation whereof arising from the factum of hers being a minor at of the stage contemporaneous to the execution of the apposite loan documents would alone have concomitantly disabled the decree rt holder/petitioner herein to constitute or to strive before the learned Executing Court against any enforcement by it of the decree under execution. Necessarily when the judgment debtor/respondent herein was not holding a decree of the civil Court of competent jurisdiction reversing the conclusive concurrently recorded decrees of two Courts at the stage of the petitioner striving to execute it by constituting an apposite execution petition before the learned executing Court, it was wholly inappropriate for the learned executing Court to merely for untenable afore-stated reasons anvilled upon Ext.OW-1/A debar the decree holder to seek satisfaction of the decree under execution before it. At this stage, it is imperative to allude to the provisions constituted in Section 47 of ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...9...
the Code of Civil Procedure, the apposite sub section (1) stands .
extracted for discerning therefrom whether the impugned rendition of the learned Executing Court has transgressed the jurisdictional domain bestowed therein upon it inasmuch as it by its nullifying the conclusive concurrently recorded decrees of two Courts by of placing a misconceived reliance upon Ext.OW-1/A has forestalled the satisfaction of the decree under execution whereas its rt nullification was ensueable on its standing set aside in an apposite judgment rendered in a separate suit instituted by the judgment debtor before the civil Court of competent jurisdiction:
47. Questions to be determined by the Court executing decree:-(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
5. The afore-referred apposite portion of sub section (1) of Section 47 of the Code of Civil Procedure though empowering the learned Executing Court to decide all questions impinging upon the execution of the decree. Nonetheless the parlance borne by the word 'execution' occurring therein cannot be construed to take ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...10...
within its domain or ambit any empowerment to the judgment .
debtor or as a corollary to the learned Executing Court to seek reversal or reverse the findings recorded against the Judgment debtor on the anvil of the decree laid for execution before it suffering from any impairment on the ground of its standing of secured by fraud especially when such an endeavour warranted its standing discountenanced by the learned trial Court, especially rt when rather dehors vitiation, if any, staining them, of the conclusive concurrently recorded decrees of two Courts put to execution before it by the decree holder enjoined it to satisfy the decree under execution, whereas its proceeding to admit objections devolving upon the decree under execution standing stained with a vice of nullity spurring from its standing obtained by fraud preeminently when the said nullity permeating the decree under execution stood enjoined to be underscored by a decree obtained in an apposite judgment recorded in a separate suit instituted for the purpose aforesaid by the judgment debtor/respondent herein before the civil Court of competent jurisdiction. Even otherwise the admitting of the objections by the learned Executing Court of the ::: Downloaded on - 15/04/2017 20:20:41 :::HCHP ...11...
judgment debtor/respondent herein preferred by the latter before it .
tantamounts to reversal of the conclusive concurrently recorded decrees of two Courts besides when it has hence gone beyond the scope of its jurisdictional domain vested in it under Section 47 of the Code of Civil Procedure whereunder it holds no authorization of to go beyond the decree in the manner it has proceeded to renders its rendition to be jurisdictionally non-est.
6. rt In view of the above, there is merit in the present petition and the same is allowed. The impugned order of 11.7.2011, passed by the learned Civil Judge (Senior Division), Sarkaghat is quashed and set aside. No costs.
(Sureshwar Thakur), Judge.
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