Krishan Kumar vs Smt. Bimla Wanti and Others

Ram Chand Gupta, J.

C.M. No. 5698-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 1418 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 28.9.2010, Annexure P1, passed by learned Civil Judge, Junior Division, Amritsar, vide which objections filed by present Petitioner-judgment debtor has been dismissed.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned Executing Court.

Facts relevant for the decision of present revision petition are that a suit for recovery of Rs. 1,13,870/-was filed by Respondent-Plaintiffs against the present Petitioner and Smt. Swaran Arora, Shri Goverdhan Dass and Ram Kumar, which was decreed vide judgment and decree dated 18.10.1995. No appeal was filed against the said judgment, which has become final. Execution petition was filed by Respondent-decree holders against the present Petitioner and other judgment-debtors, in which objection petition was filed by the present Petitioner, which was dismissed vide impugned order by learned Executing Court by observing as under:

After considering rival contentions of learned Counsel for the parties and going through the record, I am convinced with the contentions of learned Counsel for the decree-holder. Perusal of the judgment dated 18.10.2000 passed by the Court of Sh. Jaspal Singh, the then learned Civil Judge (Junior Division), Amritsar, shows that the Plaintiff has sued Defendant-J.D. No. 1 in his personal capacity stating therein that earnest money was received by the Defendant-J.D. No. 1. Perusal of the judgment further shows that suit of the Plaintiff-decree holder was decreed for recovery against all the Defendants-J. Ds. It is settled law that executing Court cannot go beyond the decree. As such, keeping in view the fact that J.D. No. 1-objector was sued in his personal capacity in the main suit and the decree was passed against all the Defendants-J. Ds including the present objector, therefore, it does not lie in the mouth of the objector that he is not liable to pay the amount under execution.

It has been contended by learned Counsel for the Petitioner-judgment debtor that even as per case of Respondent-decree holders he was only an attorney of judgment-debtor Nos. 2 to 4 and that even in the body of judgment, it is mentioned that he was attorney and hence, suit was wrongly decreed against him. Hence, it is contended that he is not liable to pay anything and rather judgment-debtor Nos. 2 to 4 alone are liable to pay the amount of the decree. On this point, he has also placed reliance upon Radhakrishna Sivadutta Rai and Others Vs. Tayeballi Dawoodbhai, .

So far as legal proposition as held in the aforementioned case is concerned, there is no dispute. However, the same is not applicable to the facts of present case before the Executing Court. The decree passed in this case reads as under:

This suit is coming on this day of 18th October, 2000 for its disposal before me (Jaspal Verma, PCS, Civil Judge, Junior Division, Amritsar) in the presence of Sh.A.K. Virmani, Adv., counsel for the Plaintiffs and Sh. Ramesh Chaudhary, Adv. Counsel for the Defendants. It is ordered that the suit of the Plaintiff succeeds for an amount of Rs. 28,000/-as principal amount and not for Rs. 44550/-as claimed. The Plaintiffs are held entitled to recover interest 12% per annum from 1.11.92 till filing of the present suit and at the same rate from filing of the present suit till realization of the decretal amount. So, the suit is decreed partly in the aforesaid terms and proportionate cost.

Perusal of the decree shows that the same has been passed against the present Petitioner -judgment debtor as well jointly with the other judgment debtors. The said judgment and decree has not been challenged by the present Petitioner-judgment debtor and the same has become final and decree-holders are having right to recover the amount from any judgment debtors including the present Petitioner.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in dismissing the objections filed by present Petitioner-judgment debtor No. 1 and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.