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1999 Supreme(Bom) 577
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.M.S. Khandeparkar, J.
The Sangli Bank Limited..... Petitioners.
Versus
M/s. Timblo Pvt. Ltd. others..... Respondents.
Civil Revision Application Nos. 169 and 170 of 1997, decided on 6-8-1999.
Advocates appeared :
S.G. Dessai, Sr.A. with A.B. D’Sa, for the petitioners.
S.K. Kakodkar, Sr.A. with R.V. Kamat, for the respondents.
Headnote:Section 115-Revisional jurisdiction-Scope.- The scope of revisional jurisdiction under Section 115, Civil Procedure Code is restricted and it is only when there is a jurisdictional error or illegality or material irregularity in exercise of jurisdiction, that the High Court can interfere. When the case is decided by the subordinate Court in irregular exercise or non-exercise of jurisdiction or illegal assumption of it, the revisional powers can be exercised to remedy the failure of justice. Undoubtedly, while exercising the jurisdiction under Section 115 it is not open for High Court to correct Errors of fact, however, gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. AIR 1965 Guj 181, (1996) 10 SCC 93 and 1998 (6) SCC 667, Ref.
Order XXI, Rule 2 (2)-Execution of decree-Order relating to satisfaction of decree at the instance of judgment debtor must be preceded by proper opportunity to decree holder.- There is no doubt that on mere statement of the judgment debtor, the court cannot record satisfaction of decree. Any order relating to the satisfaction of decree at the instance of the judgment debtor must be preceded by proper opportunity to the decree-holder to show cause against recording of such satisfaction.
The respondents-judgment debtors filed application dated 30th December, 1994 clearly informing the Court about the payment of the dues in accordance with the adjustment arrived at and further prayed for intimation to the decree-holder about the said fact as well as of satisfaction of decree and also for consequential relief such as release of hypothecated machinery and cancellation of charge. The notice of the said application was duly received by the decree-holder, i.e. petitioners herein who filed their reply to the same on 4th February, 1995. It was only after duly considering the said reply and arguments advanced at the Bar, the Executing Court decided the matter by the impugned order dated 13th August, 1997. It was thus clear that there was sufficient and substantial compliance of the provisions of Order XXI, Rule 2 (2) of Civil Procedure Code in the matter of giving opportunity to the petitioners to show cause against recording satisfaction of decree in question.
Order XXI, Rules 2 (2) and (2A)-Execution of decree-Power of Executing Court-It can record satisfaction of decree at the instance of judgment-debtor when payment or adjustment of decretal amount is proved.-On plain reading of the provisions contained in sub-rule (2) and (2-A) of Rule 2 of Order XXI of Civil Procedure Code, it is abundantly clear the Executing Court is fully empowered to record satisfaction of the decree at the instance of the Judgment-debtor when the payment or adjustment of the decretal amount is proved by documentary evidence or when such payment or adjustment is admitted by the decree-holder either in reply to the show-cause notice in terms of sub-rule (2) of Rule 2 or in some other manner before the Executing Court or when the payment is proved to have been made in accordance with the manner prescribed under Rule 1 of Order XXI. AIR 1968 SC 1087 and AIR 1997 SC 1006, Ref.
2.These revision applications arise from Order dated 13th August, 1997 passed by the First Addl. Civil Judge, S.D., Margao in Special Execution Nos. 3/92/I and 6/92/I. By the impugned order, the Executing Court has ordered that the Execution Applications stand duly satisfied and consequently the judgment debtors/respondents are discharged of their liabilities and further that the decree holders/petitioners are ordered to release/discharge/cancel hypothecated goods described in Exh. N to the decree and further to inform the Registrar of Companies to cancel the charge created and registered in the office of the Registrar of Companies under the Companies Act.
3.The facts in brief relevant for the decision are that the petitioners filed two Execution Applications bearing Nos. 3/92 and 6/92 for the recovery of the sum of Rs. 63,23,589.63 with interest thereon and Rs. 23,67,943.83 with interest thereon respectively against the respondents herein, who were judgment debtors in the said execution proceedings. During the pendency of the said execution proceedings by letters dated 14-1-94 and 19-1-94 the petitioners informed the respondents that it had been decided that the respondents have to agree for payment of the decreed amount plus 10% interest calculated upto date and the amount should be paid by the end of December, 1994 and the total liability of the respondents till date was calculated and worked out at Rs. 1,83,59,376.05 and that the respondents should ensure that the said dues were settled accordingly. On 30th December, 1994, the respondents paid the said sum of Rs. 1,83,59,376.05 to the petitioners against a receipt for the same issued by the petitioners and moved an application before the Executing Court for necessary order recording satisfaction of the decree and consequential relief. After hearing the parties the same was allowed by the Executing Court by the impugned order.
4.Upon hearing the learned Advocates for the parties, and on perusal of the records, it is seen that the Executing Court on analysis of the materials on record, held that the parties had arrived at settlement between themselves during the pendency of the execution proceedings and accordingly the total amount payable by the respondents to the petitioners was quantified at Rs. 1,83,59,376.00 to be paid by the respondents to the petitioners on or before 30th December, 1994 and the same was actually paid by the respondents to the petitioners.
5.At the outset, Shri S.K. Kakodkar, learned Senior Advocate, appearing for the respondents, sought to challenge the maintainability of the revision petition itself, on the ground that the petition is not accompanied by necessary affidavit as is otherwise required in terms of the provisions contained in the Bombay High Court (Appellate Side) Rules, 1960 and has submitted that the petition should be rejected in limine for non-compliance of the statutory provisions in the said Rules and in that regard has sought to place reliance upon the judgment of the Privy Council in the matter of (Ohene Moore v. Akesseh Tayee)1, reported in A.I.R. 1935 P.C., 5. In the said case, it was held that all appeals exist merely by statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any Court of Justice to entertain them. At the same time, it was also held therein that the Court should attempt to do substantial justice and to avoid technicalities; but they are bound by the statute law, and if the statute law says, there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for them to have jurisdiction. That was a case wherein the leave to appeal was granted by the Court of first instance without insisting for due compliance by the appellant of the mandatory provis
