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HIGH COURT OF CALCUTTA
S. K. Hazra
I. K. MERCHANTS LTD. - Appellant
Versus
INDRA PRAKASH KARNANI - Respondent
Liquidated Claim Suit 1345 Of 1956
Decided On : JANUARY 10, 1973
EXECUTION OF DECREE - INTEREST ON DECREE - JURISDICTION - NULLITY - SECTION 34 OF THE CODE OF CIVIL PROCEDURE - EXECUTING COURT'S POWER TO DETERMINE JURISDICTION - DECREE PASSED WITHOUT JURISDICTION - WHETHER EXECUTING COURT CAN DETERMINE - SECTION 51 OF THE CODE OF CIVIL PROCEDURE - CONDITIONS FOR ARREST AND DETENTION OF JUDGMENT-DEBTOR - DECREE-HOLDER'S ONUS TO SATISFY COURT - PIECE-MEAL EXECUTION.
Fact of the Case:
The plaintiff decree-holder applied for execution of the balance amount of the decree dated July 2, 1958, to be realised by arrest and detention in civil prison of the defendant judgment-debtor. The judgment-debtor opposed the application, contending that the decree was without jurisdiction, nullity and contrary to the provision of Section 34 of the Code of Civil Procedure.
Finding of the Court:
The court held that the decree was not a nullity, as the court had jurisdiction to determine the matter, even if it decided it wrongly. The court also held that the executing court had the power to determine the question of jurisdiction, even if it resulted in the conclusion that it had no jurisdiction to deal with the matter brought before it.
Issues: 1. Whether the decree dated July 2, 1958 was a nullity or without jurisdiction? 2. Whether the Executing Court can determine this question in an application for execution? 3. Whether the decree-holder has been able to satisfy the court that proviso (b) to Section 51 of the Code of Civil Procedure can be made applicable in this case? 4. Whether this is a case of piecemeal execution and the Court will not on this ground entertain this application?
Ratio Decidendi: 1. The court held that the decree was not a nullity, as the court had jurisdiction to determine the matter, even if it decided it wrongly. The court also held that the executing court had the power to determine the question of jurisdiction, even if it resulted in the conclusion that it had no jurisdiction to deal with the matter brought before it. 2. The court held that the executing court had the power to determine the question of jurisdiction, even if it resulted in the conclusion that it had no jurisdiction to deal with the matter brought before it. 3. The court held that the decree-holder had not been able to satisfy the court that proviso (b) to Section 51 of the Code of Civil Procedure could be made applicable in this case, as there were not sufficient materials upon which the court could record in writing that the judgment-debtor had since the date of the decree the means to pay the amount of the decree or some substantial portion thereof and refused or neglected to pay the same. 4. The court held that this was not a case of piecemeal execution, but execution arising subsequently because of accumulation of the interest before the decree was satisfied fully.
Final Decision: The court held that there will be no order on the application and each party will pay and bear his or its own costs.
( 1 ) THIS is an application by the plaintiff decree-holder for execution of the balance amount of the decree dated July 2, 1958, to be realised by arrest and detention in civil prison of the defendant judgment-debtor Indra Prakash Karnani.
( 2 ) THIS application was made on December 9, 1971 and a notice was issued by this court under Order 21, Rule 22 (i) (a) and Rule 31 (i) of the Code of Civil Procedure. The judgment-debtor Indra Prakash Karnani has appeared pursuant to the said notice and is opposing this application. Parameswar Santhalia, a Director of the plaintiff company has affirmed an affidavit on December 6, 1971 which is used in support of the application of the plaintiff decree-holder. On January 24, 1972 the judgment-debtor has also affirmed an affidavit denying and disputing the claim for execution of the decree as aforesaid.
( 3 ) THE facts relating to this application are shortly as follows:--On July 19, 1956, the plaintiff company instituted a suit against the defendant Indra Prakash Karnani as the maker of two Promissory Notes for Rs. 20,000/- and Rupees 57,000/- dated January 27, 1954 and February 10, 1954 respectively, aggregating to the principal amount of Rs. 77,000/- and interest on the said sums amounting to Rupees 7,875/13 calculated upto the date of the filing of the suit. The plaintiff claimed in the suit: (a) Decree for Rs. 84,875/13/-, (b) further interest and (c) costs.
( 4 ) ON July 2. 1958, A. N. Ray, J. (as he then was) passed a decree in favour of the plaintiff company against the defendant for a sum of Rs. 92,238. 15 paisc with interest thereon at the rate of 6 per cent per annum from the date of the decree until realisation and costs.
( 5 ) AFTER the decree dated July 2, 1958, there were several proceedings between the parties.
( 6 ) THE judgment-debtor preferred an appeal from the decree. On April 20. 1959 the Court of Appeal passed an order staying execution of the decree upon the defendant furnishing security to the satisfaction of the Registrar of the decretal amount. On May 7, 1959 order was passed for attachment and sale of the right, title and interest of the judgment-debtor in premises No. 12/1b, Marsden Street, Calcutta in execution of the said decree. Thereafter on May 21, 1959 on the application of the judgment-debtor G. K. Mitter, J. (as he then was) passed an order, inter alia, that upon the defendant furnishing security for the amount mentioned in the order of the Appeal Court to the satisfaction of the Registrar, Original Side, the order for attachment and sale would be stayed. Thereafter security was furnished by the judgment-debtor. A reference was held before the Registrar-in-Insolvency. The defendant offered his right, title and interest in the undivided one-third share in the said premises No. 12/1/b, Marsden Street, Calcutta, as security and proposed three other persons as his securities for the full value of the decretal amount under the said decree dated July 2, 1958. Two of the three persons who were and are the owners of an undivided one-third share each in the said premises No. 12/1b. Marsden Street, Calcutta, and the other was and is the sole and absolute owner of premises No. 250, Upper Chitpore Road (now known as Rabindra Sarani), Calcutta offered their respective properties as securities for the decree-holder. The Registrar-in-Insolvency accepted the said offer as sufficient for the full value of the decretal amount under the decree dated July 2, 1958 which at that time amounted to Rs. 98,223/1/6 pies which is equivalent to Rs. 98,223. 09 p. Security was furnished on May 27, 1969 for this amount of Rs. 98,223. 09 p. being the amount of the decree then due. Three persons who stood sureties executed security bond for this sum.
( 7 ) THE appeal filed by the defendant judgment-debtor was dismissed on December 18, 1961. There was an application for leave to appeal to the Supreme Court. But the same was dismissed by the Court of Appeal on May 7
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