Kerala High Court
Gopalkrishna Kammath vs R. Bhaskar Rao on 28 July, 1988
Equivalent citations: AIR1989KER251, AIR 1989 KERALA 251, (1988) 2 KER LT 352, (1990) 1 BANKLJ 368, (1988) 2 KER LJ 238, (1991) 2 LJR 680
ORDER K.P. Radhakrishna Menon, J.
1. The second defendant (oneof the judgment-debtors) is the revision petitioner.
2. The petitioner filed EA. 404 of 1986 complaining to the execution court that while delivering the property in execution of the decree obtained by the respondent, certain movables belonging to him were also delivered wrongly and therefore he is entitled to have them delivered back to him. The executing court dismissed the application. Relevant portion of the order reads : -
"The counsel for the petitioner argued that the movables delivered have not been mentioned in the decree schedule and hence those articles should be re-delivered. Counsel for the counter-petitioner argued that since the E.P. has already been closed, the petition is not maintainable and the proper remedy of the petitioner is to file a suit for re-delivery of the articles or the damages thereof, in view of the decision reported in Panchoo Jolaha v. Muhammad Ismail, AIR 1949 All 263. On a perusal of the E.P. the articles mentioned in this petition have also been mentioned and the petitioner/2nd judgment-debtor has not filed any objection regarding that while the E.P. was pending. Now the delivery has already been effected and E.P. closed. Section 47, C.P.C. can be invoked only when the EP. is pending. Therefore, this application is not maintainable and the same is accordingly dismissed."
3. That the movables described in the report of the amin have been delivered to the respondent-decree-holder in execution of the decree, is beyond challege. That the decree did not permit delivery of these movables is beyond dispute. The question therefore is whether the movables delivered to the decree holder in execution of the decree can be said to be delivered "in excess of the decree", If the delivery is found to be in excess of the decree, the petition is maintainable under Section 47, C.P.C. because it relates to the execution, discharge and satisfaction of the decree.
4. The learned counsel for the respondent relying on Panchoo Jolaha v. Mohammad Ismail, AIR 1949 All 263. Sm. Mana Devi v. Malki Ram, AIR 1961 All 184, Abdul Mokit v. Abdul Rashid, AIR 1929 Patna 391 and Niyaz Biv. Amdumiyan, AIR 1949 Nagpur 375 argues that the remedy of the petitioner, if any, is to institute a suit for recovery of the movables delivered to the decree-holder in execution of the decree. The question considered in these decisions pertains to the claim of a judgment-debtor for damages resulting from acts done under cover of execution proceedings. In such cases it cannot be disputed that the remedy is not to approach the executing court under Section 47, C.P.C. but to institute a separate suit for the recovery of damages because the question is not one relating to the execution, discharge or satisfaction of the decree but is one outside the decree.
5. But that is not the case where property not included in or covered by the decree in delivered in execution of the decree. If property not covered by the decree is delivered in execution of the decree, there arises a situation which, in law is called "action in excess of the decree". In such cases the proper remedy for the judgment debtor to recover the property delivered in excess of the decree is by an application under Section 47 and not by a separate suit. I am fortified in this view by a decision of the Supreme Court in Ramanna v. Nallaparaju, AIR 1956 SC 87 (at p. 91). The Supreme Court has stated thus : -
"It is well settled that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under Section 47, C.P.C. and not in a separate suit."
See also Ramabhadra v. Kadiriyasami, AIR 1922 PC 252. Here it has been stated as follows : -
"A mortgagor is at liberty by appropriate proceedings under Section 47, C.P.C to liberate, from the effects of sale, land which is by mistake included in a mortgage decree and sold at a court sale and is then included in sale certificate."
6. It is thus clear that the petition under Section 47, C.P.C. is maintainable.
7. One other ground on which the executing court dismissed the application is that a petition under Section 47 is not maintainable since the E.P. was not pending at the time of the filing of the petition. That this finding is without any substance is clear from the observation of the Supreme Court in M. P. Shreevastava v. Mrs. Veena, AIR 1967 SC 1193 (at P. 1195). The Supreme Court has stated thus : --
".........The principle of the (Section 47, C.P.C.) is that all questions relating to execution, dischargeor satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise."
8. In the light of what is stated above, the order under challenge is liable to be set aside. I accordingly set aside the same and remand the case to the executing court for a reconsideration of the issue. The court below will consider the issue in accordance with law and in the light of the observations contained in this order.
C.R.P. is allowed to the extent indicated above. No costs.