Punjab-Haryana High Court
Naresh Kumar vs Baldev Singh on 14 December, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 2150 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 2150 of 2010 (O&M)
Date of Decision : December 14, 2012
Naresh Kumar .... Petitioner
Vs.
Baldev Singh .... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Vivek Singla, Advocate
for the petitioner.
None for the respondent.
* * *
L. N. MITTAL, J. (Oral) :
C. M. No. 30867-C-II of 2012 :
Application is allowed and annexed affidavit of the petitioner is taken on record, subject to all just exceptions. Main Case :
Aggrieved by order dated 09.01.2010 (Annexure P-3), passed by the Executing Court, thereby dismissing execution petition filed by Naresh Kumar - decree-holder (DH) as satisfied, DH has filed this revision petition under Article 227 of the Constitution of India to challenge the said C. R. No. 2150 of 2010 (O&M) 2 order.
Suit filed on 05.12.2002 by DH against respondent-defendant Baldev Singh - judgment-debtor (JD) was decreed ex-parte vide judgment dated 03.02.2004 (Annexure P-1) for recovery of Rs.60,000/- along with interest thereon @ 6% per annum from the date of pronote i.e. 07.12.1999 till recovery. DH filed execution petition for execution of the said decree. JD preferred objections Annexure P-2 alleging that he was not served in the suit and that DH has played fraud. It was also pleaded that JD had taken loan from DH, who obtained three blank pronotes from the JD. It was also alleged that the JD repaid the borrowed amount to the DH, who, however, did not return the blank pronotes to the JD.
Learned Executing Court, vide impugned order Annexure P-3, dismissed the execution petition as satisfied, holding that the JD had repaid the loan amount. Feeling aggrieved, DH has filed this revision petition to challenge the said order.
I have heard counsel for the petitioner and perused the case file, whereas none has appeared for respondent - JD in spite of several adjournments after he was served in the revision petition.
The procedure adopted by the Executing Court is unheard of in law. The impugned order is patently perverse and illegal and suffers from jurisdictional error and appears to have been passed without any application C. R. No. 2150 of 2010 (O&M) 3 of mind at all or the learned Presiding Officer is not aware of the basic principles of law. No opportunity of leading evidence was given to the parties, while deciding the objections of JD. On the other hand, version of JD was accepted on the basis of two alleged receipts placed by him on the file, without proving the same in accordance with law and without affording opportunity to DH to respond to the same. The said receipts were not even mentioned in the objections Annexure P-2. In the objections, a vague plea was taken that JD had returned the borrowed amount to DH. Neither details of the loan amounts nor details of the repaid amounts were mentioned in the objections. In spite thereof, the objections have been accepted and execution has been filed as satisfied. The two receipts produced by JD in the Executing Court are dated 10.12.2000 for payment of Rs.1,00,000/- as principal amount and Rs.21,600/- as interest amount and dated 26.06.2001 for payment of Rs.80,000/- as principal amount and Rs.4,800/- as interest amount. It is surprising as to how these receipts were taken to be repayment of loan, for which the suit was decreed vide judgment Annexure P-1. The said loan amount was Rs.60,000/- only, whereas the receipts placed on record by JD pertained to loan amounts of Rs.1,00,000/- and Rs.80,000/-. It is beyond comprehension as to how by the alleged receipts, the decree was found to have been satisfied. In addition to the aforesaid, and very significantly, the aforesaid receipts are dated 10.12.2000 and 26.06.2001 i.e. C. R. No. 2150 of 2010 (O&M) 4 before the filing of the suit on 05.12.2002. Consequently, alleged payment before filing of the suit could not be set up for satisfaction of the decree in the execution proceedings. No payment was made, even according to the said receipts, after passing of the decree and consequently, on the basis of aforesaid receipts, allegedly issued before filing of the suit, there could be no satisfaction of the decree.
It may be mentioned that pursuant to order dated 03.11.2011, passed by this Court, the petitioner has filed his affidavit that the receipts pertain to two other loan amounts and not to the disputed loan amount. In this context, it is worth mentioning that even JD, in his objections, alleged that DH had taken three blank pronotes from the JD. It would depict that JD had taken three loan amounts from the DH. The two receipts produced by JD possibly could be pertaining to the other two loan amounts and not to the disputed loan amount.
Thus, examined from any angle, it becomes manifest that the impugned order passed by the Executing Court is patently perverse and illegal and suffers from jurisdictional error. Accordingly, the instant revision petition is allowed. Impugned order Annexure P-3 passed by the Executing Court is set aside. Objections Annexure P-2 preferred by JD are dismissed. The execution petition is restored to the files of the Executing Court for proceeding with the execution proceedings in accordance with C. R. No. 2150 of 2010 (O&M) 5 law. DH is directed to appear before the Executing Court on 16.01.2013.
A copy of this Order be conveyed to the Judicial Officer, who passed the impugned order Annexure P-3, where ever she is posted now.
December 14, 2012 ( L. N. MITTAL ) monika JUDGE