Raghunath Badapanda vs Arakhit Sahu and Others

G.K. Misra, C.J.—Opposite Party No. 1 is the decree-holder. Petitioner and opposite party No. 2 are the judgment-debtors, Opposite party No. 1 filed a suit for recovery of money against petitioner and opposite party No. 2. The trial Court passed a decree against the petitioner and dismissed the suit against, opposite party No. 2. The appellate court modified the decree and passed a joint decree against the petitioner and opposite party No. 2. As the judgment-debtors did not pay the decretal amount the decree-holder filed execution. In the execution case, the petitioner filed an objection u/s 47 of the CPC alleging that the money originally advanced by the plaintiff was taken half end half by the petitioner and opposite party No. 2 and consequently the Petitioner should be permitted to pay only half the decretal dues. Subsequently another application was filed asking in the alternative for grant of instalment of decretal dues. The executing court fixed the case for hearing from dey to day and ultimately dismissed both the applications disallowing the prayers of the petitioner.

Mr. Rao''s main contention is that the executing court passed the order on a date which the case had not been fixed for hearing and as such the order is vitiated. Mr. Rao was called upon to state all facts and questions of law arising in the case.

The objection u/s 47 of the CPC is not maintainable as the appellate decree was against both the judgment-debtors and their liability was determined to be joint and several the executing Court had no jurisdiction to go behind the decree and apportion liability in the manner prayed for by the petitioner.

The second contention that the question of instalment should have been considered does not arise in this case. It has been held by this Court that when a judgment-debtor asks for instalment, he must himself on affidavit disclose his own assets so as to indicate his circumstances and justify the grant of instalments. Mr. Rao placed before me the original application asking for instalment. It was held as it could be merely saying that the decretal amount was high and instalments should be granted. No materials were disclosed as to the assets of the judgment-debtor. The application was, therefore, liable to be dismissed in limine. Both the contentions have no merit and are accordingly rejected. If the contentions have no force, it matters little whether the learned Munsif heard the case on the date fixed for hearing or on some other date. This Court cannot exercise its revisional power u/s 115 of the CPC unless the necessary conditions prescribed therein are satisfied.

The application has no merit it is accordingly dismissed with costs. Hearing fee Rs. 100/.