Punjab-Haryana High Court
Dashmesh Rice Mills And Ors. vs Govind Ram Anil Kumar on 24 May, 2003
Equivalent citations: (2003)135PLR514
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges order dated 8.4.2003 passed by the Civil Judges (Jr. Division), Karnal rejecting the objections of the judgment-debtor-petitioners (for brevity, 'the JD-petitioner') in the proceedings initiated by the decree-holder-respondent (for brevity, 'DH-respondent') to execute the decree dated 12.11.2001.
2. The Civil Judge (Jr. Division), Karnal vide his judgment and decree dated 12.11.2001 decreed the suit of the DH-respondent for recovery of Rs. 1,62,208/- in favour of the DH-respondent with future interest at the rate of 18% per annum with costs till realisation of the decretal amount. The JD-petitioners were all held liable jointly and severally to pay the decretal amount. It was further directed that the decretal amount along with interest upto the date of payment be paid within four months from the date of decree i.e. 12.11.2001. The DH-respondent instituted the execution proceedings on 25.2.2002. Various objections were raised to the execution. Firstly, it was objected on the ground that execution is pre-mature because four months time w.e.f. 12.11.2001 would come to an end on 12.3.2002 and the execution proceedings having been initiated on 25.2.2002 was premature. Secondly, it was objected to on the ground that the decree has not been drawn in accordance with the pleadings because the JD-petitioners were liable to pay only an amount of Rs. 99,250/- as per their account books. It was further objected on the ground that interest at the rate of 18% per annum violates the provisions of Section 34 of the Code and, therefore, the decree could not be executed. The executing Court after considering various objections have refused to go beyond the decree and dismissed the objections of the JD-petitioner in the following words:-
"I have perused the judgment passed by then Civil Judge (Jr.D.), Karnal Sh. Rajan Walia and the case was decided on 12.11.2001 and from the perusal of the judgment as well as the decree sheet it reveals that four months time was granted to the defendants to make the payment and 1 am of the view that the time commenced for making of the payment was 12.11.2001 from the date of pronouncement of the judgment and decree sheet and the trial court itself mentioned in the judgment that four months from the date of pronouncement of the judgment and decree and the present execution was filed on 13.2.2002. So the execution petition is not premature and the same was filed after lapsing of the period granted by the trial Court.
Now coning to the question of interest and whether the person in competent to file the execution petition. At the very outset, it is worthwhile to mention here that the executing court cannot go behind the decree. The executing court is bound to execute the decree and the suit was filed by a person by whom the present execution has been filed and these questions were to be taken before the trial Court and this Court cannot decide the questions which have been raised by the JDs and even the interest which was awarded by the trial Court cannot be reduced by the executing Court and my view is fully supported by the law laid down in case Minakshi Saint v. Gurcharan Singh Sharma, 2002(2) C.C.C. 299 in which it is observed that "framing of issues is not always necessary in execution petition". And I am of the view that when the present JDs were party in the main suit, so their objections are not tenable and I have no hesitation to say that he objections are in the abuse of the process of the Court and the present application is devoid of merit and stand dismissed."
3. Mr. Sanjiv Gupta, learned counsel for the JD-petitioners has argued that the execution proceedings initiated on 25.2.2002 were premature and he has relied upon a judgment of Allahabad High court in the case of Gangotri Sahkar Avas Samitt Ltd. v. Pushpa Sahkari Avas Samiti Ltd. and Ors., 2002(2) C.C.C. 510. The learned counsel has submitted that the starting point for reckoning the date would be the date of filing the execution proceedings and it would not become mature during the pendency of the execution proceedings. The learned counsel as further argued that awarding of interest at the rate of 18% per annum by the Court passing the decree is liable to be set aside because it violates the mandate of Section 34 of the Code. In support of his submission, the learned counsel has placed reliance on three judgments of this Court in the case of Sukhchain Singh v. Punjab and Sind Bank, 1990 P.L.J. 306, Krishan Lal v. State Bank of Patiala (1990-1)97 P.L.R. 132, Sadhu v. Gram Panchayat of Village Akalian, 1990 P.L.J. 108. He has further submitted that the objections should have been decided framing the issues judiciously as has been held by this Court in Charanjit Singh v. Manmohan Singh, (1989-i)95 P.L.R. 494, and Woolways Shop v. Central Bank of India, (1989-2)96 P.L.R. 559. The learned counsel has also placed reliance on the case of Gangotri Sahkari Avas Samiti Ltd. (supra) to argue that if the decree has not been drawn consistent with the pleadings of he parties, then the decree cannot be executed and has to be taken in accordance with the pleadings.
4. I have thoughtfully considered the submissions made by the learned counsel for the JD-petitioners but do not feel persuaded to accept the same. It is well settled that the exercise of powers under Section 47 of the. Code is microscopic and lies in a very narrow inspection hole. In the case of Dhurandhar Prasad Singh v. Jai Prakash University, A.I.R. 2001 S.C.W. 2647, the Supreme Court has explained the scope of powers conferred under Section 47 of the Code. It has been concluded that all questions arising between the parties have to be determined under Section 47 of the Code and not by filing a separate suit. The observation of their Lordships showing the executing court cannot go behind the decree reads as under:
"21. Thus, the expression "void and voidable" have been subject-matter of consideration on innumerable occasions by Courts. The expression "void" has several facts, one type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise....
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23. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that execution Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree in executable after its passing in the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree' may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely case interest in the proceeding or colluded with the adversary or any other ground permissible under law."
Thus it is evident that execution of a decree could be avoided when the decree is found to be without jurisdiction, void ab initio and nullity or decree is in executable because it was passed in ignorance of law or a law is enacted after passing of a decree rendering it in executable.
5. It is equally well settled that a decree by a competent Court having achieved finality must be executed in accordance with its terms. The decree cannot be defeated by entertaining technical objections. In Pratibha Singh v. Shanti Devi Prasad, 2003(2) S.C.C. 330, their Lordships of the Supreme Court had observed that no technical objection to defeat the decree should be entertained. The views of their Lordships read as under:-
"The concern of the Supreme Court is to put an end to the litigation guided by the overriding consideration that the decree of a competent court having achieved a finality must be honoured while the judgment-debtors must receive full consideration and at this stage the Court would not permit sheer technicalities coming in the way of execution, discharge and satisfaction of the decree. It has also to be seen that the decree-holders acquire title and enter into possession over the property which the defendant judgment-debtors intended to sell while the latter should not be compelled to part with any property which they did not intend to sell."
6. When the principles enunciated by the Supreme Court are applied to the facts of the present case, it becomes evident that judgment and decree dated 12.11.2001 has attained finality and the decree holder-respondent becomes entitled to recovery of Rs. 1.62,208/- alongwith future interest @18% per annum alongwith costs. There is no indication in the decree that the rate of interest could be altered by the executing Court nor any objection has been recorded that the decree is not consistent with the pleadings of the parties. Following the judgment of the Supreme Court in the case of Dhurandhar Prasad Singh (supra), I am of the considered view that the decree has attained finality and is liable to be executed in terms thereof. Therefore, this petition is liable to be dismissed.
7. The argument that the period of four months from the date of decree i.e. 12.11.2001 for payment of the decretal amount was given and the same had not yet expired when the execution was filed on 25.2.2002, has not impressed me because it would hardly make any difference if the execution has been filed about two weeks prior to the expiry of the period of four months. The mere filing of the execution, in my considered opinion, would not determine whether the right of the decree holder-respondent has matured or not. The date of the order on which such decree in fact is directed to be complied with would be the material date to determine whether the decree has become mature for execution have matured. It is probably, these types of technicalities pointed out by the Hon'ble Supreme Court in the case of Pratibha Singh (supra), which have to be discarded as such types of objections cause unnecessarily delay in the execution of the decree resulting into harassment of the decree holder. The judgment of the Allahabad High Court in the case of Gangotri Sahkari Avas Samiti Ltd. (supra) on which reliance has been placed by the learned counsel for the JD-petitioner, has followed the reasoning applicable to the proceedings of a suit. The following para of the judgment brings forth the aforementioned view point:-
"11. Now I consider the question whether the execution is premature. It may be mentioned that the judgment and decree by which the suit was decreed in terms of the compromise is dated 6.9.1996, Annexure-2 of the affidavit. It shows that six months time was given to make payment. It is not disputed that the execution was filed before the expiry of the period of six months from 6.9.1996. The executing court has considered this point and held that six months time have already expired during the pendency of execution since the date of the decree and, therefore now the execution cannot be rejected on this ground. In my opinion, the approach of the executing court is not correct. The question whether the execution was premature or not is to be decided with regard to the date at which the execution was filed. If a suit is found to have been filed premature, it cannot be decreed for the reason that the period has expired during the pendency of the suit. Similar principle will not [will not? or will] apply to the execution. If the execution was premature when it was filed, it is liable to be rejected and cannot be proceeded with because it has premature [mature?] during the pendency of the case".
8. The question whether the principles governing the proceedings of the suit would also apply to the execution proceedings, would not require any detailed examination because both proceedings are governed by express and separate provisions of the Code which do not intermingle. A look at the provisions of various orders from Order 1 to Order XX of the Code gives a detail of procedure, which is required to be followed in prosecution of a suit. It is trite to notice that the object of initiating judicial proceedings by filing a suit involves, enforcement of some right or liability which invariably involves proof of certain facts. The substantive law whether it should be statute law or common law merely defines what facts go to constitute a right or liability before the Court could pronounce as to the existence of a right or liability, it is obliged to ascertain the facts which, according to the rule of substantive law applicable to the case are the necessary constituents of that right or liability. Such rights or liabilities are incorporated finally in a judgment or decree. In other words, a decree in sum and substance is declaration of a right or liability conferred by the substantiative law because the decree-holder has been able to prove all the facts which constitute that right. However the provisions concerning execution of decrees do not involve adjudication of substantive rights or liabilities of a litigant. Those provisions are broadly speaking procedural in nature. Order XXI of the Code gives all the details of the procedure required to be followed in execution proceedings. The procedural laws are presumed to be retrospective in their effect whereas substantive law is prospective unless it is expressly made retrospective. Even then in respect of substantive law made retrospectively, there is a presumption that it did not intend to take away vested right. Therefore, there cannot be any parity between the reasoning which applies to the proceedings undertaken for enforcement of substantive right by filing a suit culminating in the preparation of a decree and the procedural laws envisaged by Sections 47 and Order XXI of the Code which aim at executing the decree. The reasoning adopted by the learned Single Judge of Allahabad High Court, therefore, in my humble opinion would not be correct as two types of proceedings stem from different grounds which have roots in substantive laws and procedural laws. Therefore, with great respect to the learned Single Judge, I do not subscribe to the aforementioned view and reject the argument raised by the learned counsel on the basis of that judgment.
9. The other argument that interest at the rate of 18% per annum is exorbitant and violates Section 34 of the Code would not require any serious consideration because a specific issue on the rate of interest was framed by the Court drawing the decree being issue No. 1 because the allegation made by the DH-respondent in the pleadings was that it is entitled to charge interest at the rate of 19.80% per annum as per the customs and usages prevailing in the market. After adducing evidence by both the parties, the Court returned the followings on the aforementioned issue:
"I perused the file and I found that in the para No. 5 of the written statement, defendant have admitted that they have cleared the original account and rate of interest was never settled, but certain amount of interest is customary in the market. Moreover, the DW2 admitted in his cross-examination that there was no [sic?] any agreement of the rate of interest, but has also paid the interest with the rate of 18% per annum. Meaning thereby, it is admitted fact there is a customary rate of interest, but it is not clear what was the rate of interest, but it is admitted by the DW2 in his cross-examination that the rate of interest was 18% per annum, which was paid by him to the plaintiff firm. The defendants are avoiding the rate of interest only on the ground that the defendant firm was dissolved due to the heavy loss and they are not in the capacity to pay the interest. In my considered view, it is also admitted fact that the defendants had paid the interest at the rate of 18% per annum to the plaintiff firm, earlier. Therefore, the plaintiff is entitled to get the rate of interest at the rate of 18% per annum."
10. In the face of above findings, I do not find any substance in the argument raised by the learned counsel that the awarding of interest at the rate of 18% per annum by the Court passing the decree violates Section 34 of the Code. Any interference with the decree would amount to going behind the decree and violating the terms of decree which is impermissible in law. Such a course prohibited by Section 47 of the Code as also, interpreted by the Supreme Court in the case of Sunder Dass v. Ram Parkash, (1997)6 S.C.C. 662. The judgment on which the reliance has been placed by the learned counsel do not have any application even remotely to the facts of the instant case.
11. Another argument that the issues should have been framed by the executing Court or the decree was required to be consistent with the pleadings do not require any detailed examination because there was no such controversy before the executing Court as to warrant framing of issue or inconsistency between the judgment on the one hand and framing of decree on the other. The question as to whether in the facts and circumstances of the case, the issues were required to be framed or the controversy could be settled without doing so is dependent on the facts of each and every case. If there are serious objections requiring proof of facts to resolve the controversy, the executing Court is free to frame issues and then proceed with the execution. However, in the instant case, no illegality has been committed by the executing Court by refusing to frame issues because the objections were frivolous and did not require holding of an enquiry necessitating framing of issues. Similarly, there is no contradiction between the judgment and the decree which was required to be corrected under Section 152 of the Code. Reliance placed by the learned counsel on the judgment of Gangotri Sahkari Avas Samiti Ltd's case (supra) is absolutely misplaced because in that case this argument was raised but was not considered. The case was decided on the issue as to whether the execution has become mature because it was filed before the expiry of the period stipulated in the decree. Therefore, there is no substance in the aforementioned argument of the learned counsel and the same is rejected.
For the reasons aforementioned, this petition fails and same is dismissed.