Ammu vs Devaki Amma and others

P. Subramonian Poti, J.—The only question that arises in this second appeal is whether the judgment-debtor can recover back certain amount paid under the decree to the decree holder in execution, which is later found to be in excess of the amount due under the decree. It is not disputed that satisfaction has been entered of the decree, pursuant to the payment made by the judgment debtor and execution has been closed. Under such circumstances does the court executing the decree become functus officio, whether any proceedings at the instance of the judgment debtor for refund would come within section 47 of the C.P.C. and assuming that it is open to the judgment debtor to claim refund u/s 47 notwithstanding the recording of satisfaction, whether in the facts and circumstances of the case any such refund could be claimed as a matter of course are the question which have to be decided in this appeal. The decree was for money charged on properties. The judgment debtor had executed a hypothecation in favour of the Cochin Land Mortgage Bank reserving Rs. 3000/- to be paid towards the decree amount. The heirs of the decree holders filed E.A. 1844 of 1963 the prayer in which was to direct the amount reserved with the bank to be paid to them. This was because the Bank had informed the decree holder that payment will be made on intimation from the court. To this course the judgment debtors had no objection as seen from the endorsement made by their advocate on E.A. 1844/63. There was no dispute by the judgment-debtor at that time that Rs. 3000/- would not be paid as it was not due towards the decree. But the application was dismissed since the court held that there was no provision justifying the court in calling for such amount from this Bank. Thereafter a fresh E.A. was filed by the decree holder on E.A. 2092/63 to record satisfaction in view of the consent of the judgment debtors to draw Rs. 3000/- reserved with the Land Mortgage Bank. It is seen that on 3-12-1969 the court recorded satisfaction of the decree. Thereafter the decree holders drew Rs. 3000/- from the Cochin Land Mortgage Bank on the strength of the satisfaction entered by the court. After a period of 7 months the first defendant judgment debtor moved the court for recovery of a sum of Rs. 262-42, being the amount which, according to him, was received in excess by the decree holders. It was the case of the first defendant judgment debtor that Rs. 3000/- would not be due, that the first defendant agreed to the payment of Rs. 3000/- to the decree-holders by mistake and on right calculation the amount due would be less by Rs. 262-42. The court which was so moved held that the decree holders were liable to refund such amount and it allowed the application of the first defendant. This was reserved in appeal, that court holding that the decree holder is not bound to refund the amount in the circumstances of the case It is against this that the judgment debtor first defendant has come up in second appeal.

As I have mentioned earlier the amount of Rs. 3000/- was what the decree holders wanted to be paid to them and the judgment debtor at that time agreed that they may receive from the land Mortgage Bank. Subsequently when the decree holders moved for recording satisfaction there was no notice to the judgment debtor. All the same, payment was made on behalf of the judgment debtor by the bank, on the strength of the satisfaction entered and unless the judgment debtor had a case that such payment was made without authority it must be taken that voluntarily the judgment-debtor paid a sum of Rs. 3000/- to the decree holder. If the case of the judgment debtor is that the Bank paid the excess sum without authority there would be a cause of action against the Bank. I am not concerned with such a case here as there is no challenge before me to the authority of the Bank to pay Rs. 3000/- and even if there is such a challenge the remedy of the judgment debtor lies elsewhere. Therefore, for practical purposes it may be taken that, consistent with the earlier consent by the consent by the counsel, an amount of Rs. 3000/- was paid voluntarily by the judgment-debtor.

Whether in such circumstances the court becomes functus officio so that it would not be competent for the court to consider any question of refund, is one of the questions raised. When a court executes a decree for money and the decree amount due to the decree holder is discharged by payment the decree is satisfied and if execution is closed, normally it may be said that the court becomes functus officio. Whether in such cases excessive execution entitles the judgment debtor to come to the court seeking refund u/s 47 of the C.P.C. is a matter on which different views are seen expressed by various High Courts. These decisions have been referred to in Raj Babu Kothari v. Sayed Muhammed (A.I.R. 1961 Raj 227). The Rajasthan High Court has adopted the view that the court can, u/s 47, direct the refund, therefore apparently holding that the court does not become functus officio. I would have preferred to follow the opposite view expressed in the decisions reported in AIR 1929 121 (Lahore) , Dwijendra Krishna Dutt and Another Vs. Kedar Nath Poddar, and Rajkumari Prafullanalini Dassi and Another Vs. Mohini Mohan Dutt and Others, had it been necessary to finally express my view on the question. But since I am finding that even assuming that the court had not become functus officio and it could be moved u/s 47 in the facts circumstances of this case, the first defendant, judgment-debtor, will not be entitled to seek refund u/s 47 of the C.P.C. I am not expressing any final view on the above question.

It is not as if the court committed an error in calculating the decree amount so as to enable the decree holder to execute for a higher sum than what was actually provided for in the decree. It was also not as if the judgment-debtor could not get at any records of the court to verify whether the amount was due; on the other hand it seems that a sum of Rs. 3000/- was reserved as due to the decree holders by the appellant himself and when the court was moved in this behalf by the decree holders, the counsel for the first defendant, judgment-debtor, also agreed that that sum maybe received by him. There is also the subsequent payment to the decree holder which I have held is voluntary. In circumstances such as these, the court has passed an order closing the execution recognising the satisfaction entered in the decree. It is not open to the first defendant judgment debtor to move the court again u/s 47 simply because, according to him there is a mistake in the calculation of the decree amount. The mistake, in the circumstances, such as this, will not be sufficient to reopen an order or proceedings which have been closed. The grounds which justify a review may enable a court to reopen a matter which has been so closed. But the mere fact that one party acted under a mistake due either to his own negligence or ignorance is no ground recognised in law sufficient to review an earlier order. The decision brought to my notice only goes to support the view that I have taken here. The learned counsel for the appellant relies on the decision reported in Raja Babu Kothari and Others Vs. Sayed Mohammad, to which I have already adverted. It is seen that was a case where a report from the office was taken earlier with regard to the amount due. The facts in that case are none too clear as to whether the judgment debtor acted upon the mistake in the report. But certainly that case is not an authority for the position that where there is a mistake on the part of the judgment debtor in calculating the decree amount due and permitting execution by the decree holder, re-opening of the execution, which has been closed by orders of court, is contemplated. In Dwijendra Krishna Dutt and Another Vs. Kedar Nath Poddar, it was held that "where an order of dismissal of execution case is made on account of mutual mistake, the order by consent may be reopened". But it was held in that case there is no authority for the rule that any order or proceeding can be reopened on the ground of mistake of fact of one of the parties to it. That was a case where the decree holder was holder as to the amount due and he sought to reopen the execution, what was held therein was. It would be against all fundamental rules of relief on the ground of mistake to say that the mistake due to the negligence of one of the parties is sufficient to relieve him of his own agreement.

The decision reported in Rajkumari Prafullanalini Dassi and Another Vs. Mohini Mohan Dutt and Others, is distinguishable on the facts. It was a case where the decree holder was misled by the agent of one of the judgment debtors to give credit of Rs. 1000/- in excess of that to which the judgment debtor was entitled. It was held that the judgment debtor was not to be allowed to take advantage of the mistake. The facts of the case show that the mistake was caused by the act of the agent of one of the judgment-debtors and that was the reason why the decree-holder was held entitled to recover the amount wrongly given credit to. I may also refer to the decision in Fakaruddin Mahomed v. The official Trustee of Bengal ( ILR X. Cal. 538). In that case the judgment debtor was given an opportunity to examine the state of the accounts, available in court, pending execution proceedings. He did not avail himself of the opportunity, but sought permission to examine such accounts after the execution proceedings had been struck off an the decree was recorded as satisfied. The court held that he could have examined the accounts earlier and if he wanted to object, he should have done it earlier and the only course open to the judgment debtor would have been to apply for a review of the order which declared the decree to be satisfied. This, according to me, is the correct view. When due neither to the fault of the court nor to any misrepresentation on the part of the decree holder, the decree is allowed to be executed and the amounts realised and the decree itself is satisfied the ground on which the proceedings could be reopened and recovery sought is only that which would be sufficient to justify a review. Such a ground is not available in the present case and therefore I think that the judgment debtor appellant is not entitled to seek refund of the amount, which according to him, has been paid in excess.

In the result, I dismiss the second appeal. But, in the circumstances, I direct the parties to suffer their costs.