Pehlad and others vs Dalel Singh and others

Rajindra Nath Mittal, J.—Briefly the facts of the case are that four suits were filed by different plaintiffs against Pehlad, Devi Sahai, Han Chand, Bhim Singh and Surjan, defendant appellants and Gopi Ram defendant-respondent in the court of Subordinate Judge 1st Glass, Ballabgarh, as detailed below :

Sr. No. Suit No. Amount Claimed (Rs. ) Amount of decree Appeal No. Plaintiffs

Principal Interest Total

329/ 1973 38350/- 8053/- 46403/- 84700/- 1134 of 1977 Dalel Singh & Satbir Singh S/o Dalel Singh

2 3 4 5 6 7 8

2 319/ 1973 30000/- 6300/- 36300/- -do- 1135 1977 of Mahabir So/ Dalel Singh

317/ 1973 22400/- 4704/- 27104/- -do- 1133 1977 of Sis Pal S/o Dalel Singh

318/ 1973 6000/- 1260/- 7260/- -do- 1132 1977 of Rajkali w/o Dalel Singh

All the suits were consolidated in Civil Suit No. 329 of 1973 and evidence was recorded at one place. The suits were decided by one judgment though a copy of the judgment was placed separately on the file of each case. Five of the defendants came up in appeals against the judgments and decrees of the trial Courts to this Court. The numbers of the appeals have been given in the details already given above.

They filed four Civil Misc. applications in the R.F.A. praying that execution of the decrees under Order 41, Rule 5 read section 151, CPC (hereinafter called the Act) be stayed. The applications came up for hearing before me and I, after hearing the learned counsel dismissed the same vide order dated September 1, 1977. I however, directed that the respondents shall be entitled to withdraw the amount on furnishing security for refund of the same to the satisfaction of the executing Court. The appellants went up in appeal against my order before Letters Patent Bench. They, however, withdrew the appeal stating that they wanted to move the Court under Order 41, Rule 1, C.P.C. The appeal was consequently dismissed by the Letters Patent Bench vide order dated 7th October, 1977.

The appellants have filed the present application under Order 41, Rule 1(3) and 5 of the CPC read with Section 151 C.P.C., that they were unable to pay such a huge amount and they shall suffer a substantial and irreparable loss if the security for the money decree was not ordered. In the circumstances they prayed that the application be allowed and the appellants be ordered to furnish security for the decretal amount impugned in the appeal.

The first contention of the learned counsel for the appellants is that this Court while deciding the previous applications did not take into consideration the provisions of Order 41, Rule 1(3) of the Code. He submits that the Court should have accepted the security from the decree-holders. He also criticised the judgment under appeal. On the other hand, the learned counsel for the respondents vehemently argued that the applications filed by the appellants under Order 41, Rule 1(3) and 5 shall amount to an application for review and the circumstances of this case do not warrant that the order passed on September 1, 1977 be reviewed.

I have heard the learned counsel for the parties at a considerable length. It cannot be disputed that the plaintiff-respondents belong to the same family, as Rajkali respondent is the wife of Satbir, Mahabir and Sis Pal, respondents are the sons of Dalel Singh, respondent. The suits were filed against the same defendants, and were consolidated These have been decreed for a total amount of Rs. 84,700/-. No doubt it is true that in all the suits decree for the aforesaid amount has been passed but it appears that the mistake has crept in as all the cases were disposed of by the Court by one judgment and copies of the judgment were placed on the files in all of them. In all fairness it has been conceded by Mr. Sarin, learned counsel for the respondents that there was mistake in passing of the decrees by the trial Court and that in fact, the total decretal amount in all the four suits was Rs. 84,700/-. He had also given an undertaking that the respondents would execute the decree only in Civil Suit No. 329/1973 entitled, "Dalel Singh Satbir Singh v. Pehlad, etc." decided on April 6, 1977 against which R.F.A. No. 1134/1977 had been filed and not in three others. Mr. Sarin, it may be mentioned, represents the respondents in all the appeals. In the circumstances, 1 had not stayed the execution of the decree in suit No. 329 of 1973.

It is common knowledge that in most of the cases, the object of filing an appeal by the person against whom a decree has been passed for recovery of money, is to obtain stay, even though he knows that there is no substance in the appeal. The real trouble of the decree-holder starts after he has obtained a decree in his favour. The judgment-debtor tries his level best to cause delay in the execution of the decree by raising frivolous objections. He prefers to spend much more on the Court fees and meeting other expenses of litigation than to pay the decretal amount. The result is that the decree-holder is unable to execute the decree for a long time. The execution of money decree is more cumbersome than execution of other types of decrees. In the execution of a money decree, two main steps are involved; first attachment of the property and secondly its sale. The judgment debtor raises objections not only after the sale but even after attachment has been effected. If he himself fails in the objections, he sets up others to file objections. The result is that execution proceedings for recovery of decretal amount are unnecessarily prolonged and the decree holders, in a large number of cases, have to spend much more for recovery of decretal amount than the amount of decree. Thus in money decree the lot of decree-holders is still worse.

Order 41, rule 6(2) of the Code provides that where an order has been made for the sale of immoveable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on an application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit untill the appeal is disposed of The tenor of the sub-rule shows that the benefit of the aforesaid provisions can be given to the judgment-debtor after the attachment of his property has been effected. It has been seen in some cases that the judgment-debtor, after filing an appeal against a money decree, obtains stay of the execution and thereafter disposes of his property In that eventuality it becomes difficult, rather impossible, to recover money from him, inspite of dismissal of his appeal. After the attachment of the property, the judgment debtor cannot sell the property and that gives some protection to the decree-holder. In the circumstances, it is proper that the execution of money decree may not be stayed till the attachment of the property has been effected. While dismissing the earlier application, all these matters were in my view.

The main grievance of the counsel for the applicants is that in all the four cases, a decree for recovery of Rs. 84700, has been passed. I have already discussed above that Mr. Sarin has given an undertaking that the respondents would execute the decree in one case. In the circumstances this objection loses all its force. The objection is of a technical nature and it may not be necessary at the time of appeals to remand the cases to the trial Court for a fresh decision and the mistake may be rectified here.

Now the question to be determined is as to what is the effect of introduction of Order 41, rule 1(4) by the Legislature. Mr. Mittal has urged that the Court is bound to stay the execution in view of the aforesaid rule. In order to decide this question, it will be appropriate to read the sub-rule which is as follows:--

Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.

The rule authorises the appellate Court in money decree to direct the appellant to furnish security or deposit the disputed amount in an appeal as it thinks fit. The sub-rule has been introduced for the benefit of a decree-holder. I have already mentioned above that the decree-holder has to face the real difficulty in execution of his decree. Prior to the introduction of the rule, the Court had suo motu no power to order the judgment-debtor to deposit the amount or furnish security in order to lessen the hardship of the decree-holder, the Court has been given this power. The sub rule, however, does not appear to be mandatory. The reason for coming to this conclusion is that the Code does not provide that if the decretal amount or security, as ordered by the Court, is not deposited or furnished by the judgment debtor, the appeal is liable to be dismissed, on this ground. In view of the aforesaid discussion, I am of the opinion that the applicants cannot take any benefit from the aforesaid provision.

Mr. Mittal has urged that the property has been ordered to be sold by the executing Court and consequently the sale may be stayed on giving of security as provided in Order 41, rule 6(2). I regret my inability to accept the contention. I might have granted relief under the aforesaid provision, but it is not possible to do so. Under this rule, the application has to be made by the judgment-debtor in the Court which has made the order of sale of immovable property. In this view, I am fortified by a decision of this Court in Bhagan Singh v. Tela Singh etc (1974) 76 P.L.R. 498. In the circumstances, the applicant cannot take benefit of the provisions of the sub-rule. They may, if so advised, file an application in the executing Court. Consequently I reject this contention of the learned counsel.

For the reasons recorded above, I dismiss the application with no order as to costs.