Karnataka High Court
Bharamappa Kalappa Ijari vs Venkatesh Sesha Itagi on 13 September, 1990
Equivalent citations: ILR1991KAR208, 1990(3)KARLJ308
ORDER M. Ramakrishna, J.
1. This Revision Petition under Section 115 of the Code of Civil Procedure is against the order made in Execution Case No. 20/1987 on the file of the Court of the I Munsiff, Dharwar dated 18th of April 1987.
2. The facts leading to the filing of the revision petition are as follows:
Venkatesh Sesha Itagi, the first respondent herein (since deceased by his L.Rs) filed a suit in O.S. 45/1975 in the Court of the Prl. Munsiff, Dharwar on 11-2-1975 seeking to recover two sums of money (1) Rs. 1,000/-and (2) Rs. 1,500/- from the petitioner herein. By an order made on 30th of September 1987, the suit came to be decreed in respect of Rs. 1,000/- and it was dismissed in respect of Rs. 1,500/-. As against the decree passed by the Court below, R.A. No. 70/1977 came to be filed by the petitioner-defendant and the appeal came to be dismissed. R.A.No. 71/1977 presented by the plaintiff as against the dismissal of the suit came to be allowed and the suit was decreed for a sum of Rs. 2,500/- with interest at 12% from the date of the suit along with costs.
3. As against the decision rendered by the Appellate Court in R.A.Nos. 70 and 71/1977, the petitioner-defendant preferred C.R.Ps. 2132 and 3023/1982 before this Court, This Court by a common order made on 28-11-1986 disposed of both the revision petitions holding that the order made in R.A. 71/1977 on 16-6-1980 was improper. Hence it came to be reversed and the order of dismissal of suit in O.S. 45/1975 came to be restored.
4. In the meanwhile, the decree holder-first respondent executed the decree in Execution Case No. 104/1981 on 13-10-1981. In the said execution petition, he claimed a sum of Rs. 5,112-67 ps. pursuant to the order made both in R.A. 70/1977 and R.A. 71/1977.
5. It is necessary to mention here that during the pendency of the execution proceedings, a sum of Rs. 1,729-15 ps came to be deposited on 5-7-1980. This amount is towards the decree that came to be confirmed in R.A.No. 70/1977. This amount included not only the decretal amount but also the costs. It is also necessary to mention here that that amount came to be realised by the decree holder from the Court.
6. On 13th October 1981, it was pointed out, a sum of Rs. 3,334-96 ps. came to be recovered in Ex. No. 104/1981 and valid stamp receipt was given by R.M. Vaidya, learned Counsel appearing for the decree-Holder.
7. This revision petition is on account of the reversal of the decree in R.A. 71/1977 and restoration of the order dismissing the suit in O.S. 45/1975 on the file of the Principal Court of Munsiff, Dharwaf with regard to Rs. 1,500/-. The petitioner contended that he is entitled to refund of the excess amount paid by him.
8. A legal notice came to be issued on 5-2-1987 calling upon the first respondent-decree holder to deposit a sum of Rs. 5,177-67 ps within 15 days, a detailed calculation of which as shown on Page 2 of the notice is as follows:-
Rs. 1,729-15 Deposited by my client on 5-7-1980 in Court in R.A. 71/1977 and taken by you.
Rs. 1,366-02 Interest on Rs.
1,729-15 at Rs. 12% per annum from 5-7-1980 to 5-2-1987.
Rs. 1,191-50 Interest received by you from my client on Rs. 1.500/- 8 Rs. 12% P.A. from the date of OS No. 45/75 i.e., from 11-2-1975 till 24-9-1981.
Rs. 761-00 Interest on Rs. 1,191-50 from 24-9-1981 to 5-2-1987 at the rate of 12% per annum.
Rs. 130 Legal fee & costs of the notice Rs. 5,177-67 Grand total.
However, the balance of money payable as indicated in the notice having not been paid to the revision petitioner, an application was presented before the trial Court on the 17th of March 1987 under Section 144 CPC read with Order 21 Rule 11 requesting the Court to issue notice and to recover the amount so payable to the applicant. The Court below however technically found fault with the action taken by the applicant and rejected his claim. The reason given for doing so is that there was no application presented under Section 144 of C.P.C. praying for the refund of the amount.
9. Aggrieved by this order the petitioner has approahed this Court in this petition for relief.
10. As I have already mentioned above, the first respondent-decree holder having died, his legal representatives 2, 3 and 4 were brought on record. I do not have the benefit of the say of the learned Counsel appearing for respondents 2 and 3 while 4th respondent remained absent.
11. The short question that falls for consideration in the revision petition is, whether the Court below was right in rejecting the application of the petitioner on the ground that there was no application under Section 144 C.P.C. My answer is in the negative for the simple reason that from the copy of the petition produced by the revision petitioner before the Court, it is clear that it was so filed in the execution case No. 20/1987 under the provisions of Order 21 Rule 11, read with Section 144 CPC. The construction of the said application by the Court below is incorrect inasmuch as merely because the application discloses the execution case number and the reference to Order 21 Rule 11, it cannot be construed as if it is not a claim petition seeking refund of the amount for which the petitioner is entitled to in law. It is needless to point out that by a perusal of the language employed under Section 144 and the scope thereof, it is clear that by virtue of either vary or reversal in any appeal or revision or other proceedings or setting aside or modifying any order or Judgment in the suit, excess amount having been deposited or paid by Judgment debtor or the party who was called upon to pay the amount in Court, the party so deposited the money in Court shall be entitled to refund of the money so paid. This is the intendment of Section 144 CPC. Explanation found under Section 144 is also clear that in such a case, there is no need for a party, becoming entitled to refund the amount to file a separate suit. Therefore, mere application presented under Section 144 CPC, for refund of the excess amount paid, by virtue of the order of this Court in the revision petition, is enough to initiate proceedings, hold an enquiry and then to pass an order. Although the Court below has understood the correct scope of the Section, it has observed that such a person would not be entitled to refund and his application came to be rejected solely on the observation that such an application under Section 144 CPC, is not filed. This observation is actually incorrect, as such an application was presented by the revision petitioner on 17-3-1987 as indicated above. The Ruling of this Court in SHIDAGOUDA BAPUSAHEB KHANAGOUDA DESAI AND ANR. v. BALASAHEB SHIDAGOUDA DESAI AND ORS., 1970(1) Mys.L.J. 242 and also the Ruling of the Supreme Court in MAHIJIBHAI MOHANBHAI BAROT v. PATEL MANIBAI GOKALBHAI AND ORS., make it abundantly clear that when a person became entitled for the refund of the amount, and when an application under Section 144 CPC was presented by the applicant-petitioner, the Court below was not right in rejecting the claim technically holding that there was no application presented. Therefore, the conclusion reached by the Court below in rejecting the claim of the applicant deserves to be set aside. It is accordingly set aside. However, the matter stands remitted to the Court of Principal Munsiff, Dharwar, with a direction to him to initiate proceedings and to record a finding as required under Section 144 CPC and to pass appropriate orders for refund of the money to which the petitioner is entitled in law. In the circumstances there is no order as to costs.