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2012 (2) GCD 1727 (Guj)
Hon’ble Mr. Justice M.R. Shah
Municipal Corporation of City of Ahmedabad
Versus
Gujarat Electricity Board (Now Uttar Gujart Vim Com. Ltd.)
Civil Revision Application No. 177 of 2011—Decided on 16/03/2012
Civil Procedure Code, 1908 (Central Act 5 of 1908) — Order 21 Rule 2(a) — Adjustment — Judgment-Debtor’s credit amount towards taxes — Application for by judgment debtor — Rejection by Executive Court — Propriety of — Finding as to — Under the judgment and order passed by Learned Small Causes Court Ahmedabad respondent judgment creditor was entitled to refund of Rs. 5,22,360.00 which was found in excess payment for realisation of with respondent presented execution application — Petitioner claimed that said excess amount paid by respondent has already been adjusted in the subsequent bills — The same is given credit therefore nothing was due — Executing Court did not accept the same and passed order of issue of warrant — Subsequently petitioner submitted application for adjustment which was also rejected and rightly so because Judgment debtor firstly did not followed the procedure required for adjustment contemplated under Order 21 Rule 2 of the Code — The petitioner has also relied on Section 413 of the BPMC Act but it is no help to petitioner because Small Causes Court has specifically directed and pass the order that in case of excess payment of tax by respondent corporation is directed to refund the same to respondent — The said or order has attained finality and as such petitioner has accepted the judgment and order—In the circumstance rejection of petitioners application for adjustment was rightly rejected by the lower Court.
Held :
The learned executing Court has held that the judgement debtor has not followed procedure as per Order 21 Rule 2 of the Code of Civil Procedure and therefore, the Corporation is not entitled to adjust the amount which is given credit towards the dues to be paid by the judgement creditor. That the learned executing Court has rightly held that the judgement creditor cannot adjust the credit amount towards taxes that too without following any procedure as required under Order 21 Rules 1 and 2 of the Code of Civil Procedure and without informing the Court about such payment or adjustment and/or whether applying the Court to issue notice to the decree holder to show cause on date to be fixed by the Court, such payment or adjustment should not be recorded as certified. [Para 10]
Now, so far as the contention on behalf of the petitioner, relying upon Section 413 of the BPMC Act and rules that in case of a person succeeding in an appeal in Municipal Valuation Appeal, amount of tax paid in excess is not required to be refunded, but it should be given credit in the subsequent bills and therefore, the judgement creditor was not entitled to any refund on allowing MVA No. 3349 of 1998 is concerned, it is required to be noted that as such, while passing judgement and order dated 14/3/2003 passed by the learned Small Causes Court in MVA No. 3349 of 1998, the learned Small Causes Court has specifically directed and passed an order that in case of excess payment of tax by the respondent, Corporation is directed to refund the same to the respondent – original appellant. As stated above, the said order has attained finality and as such the petitioner has accepted the said Judgement and Order. Therefore, now it is not open for the petitioner to make a grievance with respect to the same and/or it is not open for the petitioner to submit that even on allowing MVA No. 3349 of 1998, the respondent was not entitled to refund and the same was required to be adjusted in the subsequent tax bills. [Para 11]
Law Laid Down :
Judgment debtor can not adjust the credit amount of plaintiff decree holder towards it claim towards without following procedure as required under Orders 21(1) and (2) of the Code and without informing the Court about such payment and adjustment.
M.R. Shah, J.—Present Civil Revision Application under section 115 of th4 Code of Civil Procedure has been preferred by the petitioner - original respondent / judgement debtor to quash and set aside the impugned order dated 26/7/2011 passed by the learned Small Causes Court, Ahmedabad below application Ex.35 in Execution Petition No. 333 of 2008, by which the learned executing Court has dismissed the said application Ex.35 submitted by the petitioner - judgement debtor for recording the adjustment under Order 21 Rule 2(a) of the Code of Civil Procedure.
2. That the respondent herein – original appellant initiated proceedings before the learned Small Causes Court, Ahmedabad against the petitioner Corporation under the provisions of the Bombay Provincial Municipal Corporations Act challenging rateable value fixed by the petitioner with respect to the premises in question for the Assessment Year 1997-98. It appears that the learned Small Causes Court partly allowed the said Municipal Valuation Appeal No. 3349 of 1998 and fixed GRV of premises at Rs. 62,000/- for the Assessment Year 1997-98. The learned appellate Court also further directed to give effect of the judgement within a period of one month and in case of excess payment of tax by the original appellant - Electricity Company, the Corporation was directed to refund the same to the Electricity Company. That the said Judgement and Order came to be passed by the learned Small Causes Court on 14/10/2003. It is required to be noted that the said Judgement and Order passed by the learned appellate Court has attained finality, as the same is not challenged by the petitioner Corporation. That thereafter as the amount of tax already recovered was not refunded as per the Judgement and Order passed by the learned appellate Court in MVA No. 3349 of 1998, the respondent herein – original appellant preferred Execution Petition No. 333 of 2008 and after giving opportunity to the petitioner, the learned executing Court passed an order directing to issue Jangam Warrant of Rs. 5,22,360/- along with interest at the rate of 15% per annum from 4/5/1998 till realisation and also further directed to pay Rs. 5000/- by way of cost to the judgement creditor. It appears that being aggrieved by and dissatisfied with the order dated 20/10/2010 passed by the learned executing Court passed in Execution Petition No. 333 of 2008, petitioner preferred Civil Revision Application No. 180 of 2010 before this Court and the learned Single Judge of this Court rejected the said Civil Revision Application. While rejecting the said Civil Revision Application the learned Single Judge also recorded statement made by the learned advocate appearing on behalf of the petitioner that they will move necessary application before the learned trial Court pointing out adjustment of the amount by giving credit in the subsequent bills and the learned Single Judge observed that as and when such an application is made, the same be considered in accordance with law and on merits and after affording an opportunity to both the sides. Thus, as such the said order passed by the learned executing Court below application Ex.1 in directing to issue Jangam Warrant of Rs. 5,22,360/- along with interest at the rate of 15% per annum from 4/5/1998 till realisation, came to be confirmed by the learned Single Judge. It appears that thereafter the petitioner submitted application Ex.35 in the Execution Petition submitting that against the demand of Rs. 5,22,360/- a huge amount of tax is still due against the respondent and therefore, instead of giving refund, the Corporation has already given credit of the same against due taxes. The petitioner also produced relevant statements of amount of tax due and payable by the respondent and giving credit of the same in the subsequent bills. Therefore, it was submitted that as such nothing is due and payable / refunded pursuant to the judgement and order passed by the learned appellate Court in MVA
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