Ranganathan vs S. Kuppuraju

K. Govindarajan, J.—The judgment-debtor, aggrieved against the order of the Principal District Munsif Court, Tiruvannamalai, dated

2.4.1993 passed in R.E.P.No. 483 of 1990 in O.S.No. 1764 of 1981, has filed the above revision petition. The respondent filed a suit in O.S.No.

1764 of 1981 for recovery of money given to the petitioner under a promissory note. The trial court passed a decree on 23.10.1987. Admittedly,

the said decree has become final. On the basis of the decree, the respondent filed Execution Petition in R.E.P.No. 483 of 1990 to execute the

decree. Even in the execution proceedings, the petitioner herein was served only by affixture. Though the court granted time for filing counter, it

was not filed and when the petition was called on 27.6.1991 neither his counsel nor the petitioner herein did appear before the court and so

attachment was ordered. At that stage, the petitioner herein filed a counter statement stating that he is entitled to the relief under Act 13 of 1980. It

is relevant to mention her that even in the counter no objection was raised regarding the jurisdiction of the court to proceed with the execution

proceedings. The trial court after hearing the parties, on the basis of the oral and documentary evidence, held that the petitioner is not entitled to

any relief under the Tamil Nadu Act 13 of 1980 and permitted the respondent to proceed with the execution proceedings. Aggrieved against that

order, the petitioner has filed the above revision petition.

The learned counsel appearing for the petitioner has not canvassed any argument on merits. He has submitted that the civil court has no

jurisdiction to entertain any suit against the debtor for the recovery of any amount on such debt. The learned counsel relied on Section 4(1 )(b) of

the Act 13 of 1980 and Section 9 of CPC in support of his submission. Section 4(1)(b) reads as follows:-

No Civil Court shall entertain any suit or other proceedings against the debtor for recovery of any amount of such debt (including interest, if any):

Provided that where any suit or other proceedings is instituted jointly against the debtor and any other persons, nothing in this section shall apply to

the maintainability, of such suit or proceeding in so far as it relates to such other person.

While considering the scope of Section 4(1 )(b) of the Act, Ratnam. J. in the decision reported in Perumal v. Chinnakuppanna Gounder, 1981 94

L.W 317, has held as follows:-

Under Section 4(1)(b) there is no bar against the institution of a suit, but only as regards the entertaining of any suit. Designedly, the expression

''entertain'' has been used in Section 4(1)(b) instead of the familiar phraseology ''no suit shall be instituted. This deliberate departure is indicative

that even after the institution of the suit for the recovery of a debt, it will be open to the court to adjudicate upon a claim by a person that he is a

debtor and thereafter refuse to entertain the suit as against such a ''debtor''. The proviso contemplates the institution of suits or other proceedings

against two or more persons one of whom is a debtor and the other or others are not and in such a case, the suit or proceeding, in so far as it

relates to persons other than the debtor, is not, in any manner, affected by the relief granted in Section 4(1)(a).

In view of the above decision, it cannot be said that the institution of the suit is totally bad and so Section 9 of the Act will not come into operation

to say that the civil Court jurisdiction has been ousted in the matter relating to suit for recovery of money.

The learned counsel has submitted that in all the decisions dealing with the scope of Section 4(l)(b) of the Act 13 of 1980, it has been decided

that the Civil Court has jurisdiction to entertain the suit only on the basis that no machinery has been provided under the rules to entertain the

application of the judgment-debtors. This cannot be correct in view of the decision reported in Perumal v. Chinnakuppanna Gounder, 1981 94

L.W 317, in which, as quoted earlier, the learned Judge has decided the scope of Section 4(1)(b) of the Act and held that the Civil Court can

entertain the suit.

In this case, the petitioner has raised this issue specifically and the trial court went into the issue and held that he is not entitled for any benefit

under the Act 13 of 1980. That finding of the trial court has become final and it was not challenged by filing any appeal. So, the petitioner cannot

raise that objection to the effect that the Civil Court has no jurisdiction, to entertain such a suit. The petitioner cannot reagitate the issue in the

execution proceedings. A decision between the parties though erroneous is binding on the parties. So, the petitioner cannot be allowed to reagitate

the matter in the execution proceedings that too after leaving the decree to become final. In similar circumstances, the Apex Court in the decision

reported in Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, , has held as follows:-

The foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither at the time

when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the two sales

made by him did the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution court had no

jurisdiction to execute the decree. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of

jurisdiction on the principle of constructive res judicata after the property has been sold to the auction- purchaser who has entered into

possession.

The Full Bench of this Court in the decision reported in Mohan Ram v. T.L. Sundararamier, AIR 1960 Mad. 377 while dealing with the power of

the Executing Court, has held, as follows:-

The power of the executing court to go behind the decree, because it is opposed to public policy and also offends a statutory prohibition, is upon

another plane altogether. It must be carefully delimited and no executing court can launch into what is virtually a fresh trial, because of mere

allegations, or of further new material claimed to be available. To stir the conscience of the court, material on the same footing, as the decree itself,

and equally evident and indisputable, must show that the land is inalienable, and that the sale offends public policy and law.

In the present case it is not the case that the decree is opposed to public policy or offends the statutory prohibition. So, the petitioner cannot ask

the executing court to ignore the decree and dismiss the execution petition.

Then, the learned counsel appearing for the petitioner relied on the order in the writ petition, in W.P.No. 6633 of 1983, to submit that this court

has directed the concerned Tahsildar to go into the question whether the petitioner is a debtor or not. Admittedly, the respondent is not a party to

that proceedings and so it cannot be used against the respondent. Merely because some direction is given in a case, the petitioner cannot be

allowed to use the same in the present case, especially when the decree passed against him had become final. In these circumstances, the revision

petition is liable to be dismissed.

In the result, this revision petition is dismissed. No costs. Consequently, C.M.P.Nos. 6926 and 11231 of 1993 are also dismissed.