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2017 Supreme(Gau) 256
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Cachar Gramin Bank (Assam Gramin Vikash Bank) – Petitioner
Versus
Nilupa Begum – Respondent
CRP (I/O) No. 30 of 2014
Decided On : 22-03-2017
For the Petitioners: Mr. S. Dutta, Mr. M. Choudhury, Ms. N. Modi and Mr. C. Sarma.
For the Respondents: Mr. S.P. Choudhury and Mr. B. Kaushik.
Headnote:
Constitution of India,1950 - Article 227 - Code of Civil Procedure , 1908 - Section 47 and 115 - LIC policy – Deceased – Recover of the Amount – Decreed – Challenged - It was also projected in suit that husband of respondent/plaintiff No. 3 died while he was in service as an employee of Hindustan Paper Corporation/Cachar Paper Mill, Pachgram and left behind plaintiff Nos. 1 and 2 as well as defendant Nos. 1 to 4 as legal successors to his property and it was projected that there were certain deposits of LIC policy of deceased to which the said plaintiffs were entitled - It was prayed in suit that the plaintiffs were entitled to their respective shares as mentioned in Schedule-A, B and C appended to plaint and for a decree that the defendant Nos. 1 to 3 and 6 had no right to appropriate - Defendant No. 6 in the suit was the Branch Manager - Suit was decreed against defendant Nos. 1 and 2 with cost and by holding that plaintiffs were entitled to recover a sum from defendant No. 1 (respondent No. 4 herein) and defendant No. 6 (petitioner herein) along with interest @ 6% per annum from date of institution of suit till complete realization – Held, Petitioner, this Court is of view that LIC certificate, which was produced before learned Executing Court is a prima facie proof that beneficiary of the LIC policy in question was not petitioner bank as there was a nominee appointed in respect of said policy - Moreover, said LIC policy, having not been assigned could not have been paid to petitioner’s bank as a beneficiary and therefore, it would have been appropriate for learned Trial Court to examine said issue before rejecting said application under Section 47 of Code of Civil Procedure - Payment could only have been passed only against employer and without arraying bank as the defendant in suit, no liability can be settled against Branch Manager - Therefore, this Court is of view that the execution cannot proceed only against Branch Manager without arraying employer, i.e. Cachar Gramin Branch as being judgment debtor in the case - Payment of money under the decree must be made by Bank and cannot be made by the Branch Manager - Therefore, so far as a decree against the petitioner judgment debtor No. 6 is concerned, this Court finds that decree is inexecutable - Executing Court appears to have exercised jurisdiction vested in it with material irregularity
1. Heard Mr. S. Dutta, learned Senior Counsel for the petitioner as well as Mr. A.S. Dhillon, learned counsel for the respondent No. 8. None appears on call for the other respondents.
2. By filing this revision under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India, the petitioner has challenged the order dated 07.01.2014, passed by the learned Munsiff No. 1, Hailakandi, in Money Execution Case No. 65/2012, arising out of judgment and decree dated 09.02.2011, passed by the learned Munsiff No. 2, Hailakandi, in Money Suit No. 75/2009. By the said order, the petition filed under Section 47 of the CPC by the Branch Manager of the petitioner, who was the judgment debtor No. 6 in the said execution proceeding was rejected.
3. The brief fact of the case is that the principle respondent Nos. 1, 2 and 3 herein, as plaintiffs, had filed a suit before the learned Trial Court stating, inter-alia, that the plaintiffs were entitled to their respective shares to the estate left behind by the husband of the respondent/plaintiff No. 3.
4. It was also projected in the suit that the husband of the respondent/plaintiff No. 3 died while he was in service as an employee of the Hindustan Paper Corporation/Cachar Paper Mill, Pachgram and left behind the plaintiff Nos. 1 and 2 as well as defendant Nos. 1 to 4 as the legal successors to his property and it was projected that there were certain deposits of LIC policy of the deceased to which the said plaintiffs were entitled to. It was prayed in the suit that the plaintiffs were entitled to their respective shares as mentioned in Schedule-A, B and C appended to the plaint and for a decree that the defendant Nos. 1 to 3 and 6 had no right to appropriate the money of Schedule-A and for a decree directing that the defendant Nos. 1 to 3 and 6 had no right to appropriate the money of Schedule-A to the plaint and for further release of the said amount to the plaintiffs.
5. The Branch Manager of the petitioner, who is the defendant No. 6 in the said suit, did not contest the suit and the suit proceeded ex-parte against him.
6. It would be appropriate to mention here that the defendant No. 6 in the suit was the Branch Manager, Kalacherra. The suit was decreed against the defendant Nos. 1 and 2 with cost and by holding that the plaintiffs were entitled to recover a sum of Rs. 6,666/- Rs.28,780/- and Rs. 57,959/- from the defendant No. 1 (respondent No. 4 herein) and the defendant No. 6 (petitioner herein) along with interest @ 6% per annum from the date of institution of the suit till complete realization. As per the judgment passed by the learned Trial Court in the suit, the liability was imposed on the petitioner herein by holding that the petitioner had appropriated the proceeds of the concerned LIC policy.
7. In course of time, Money Execution Case No. 65/2012 was filed and proceeded against the petitioner herein. In the said proceeding, a notice was issued to the Branch Manager of the petitioner to show cause as to why the recovery of Rs.1,03,705/- along with interest @ 6% per annum should not be made. On receiving the notice, the Branch Manager of the petitioner herein approached the Life Insurance Corporation of India, and on 28.10.2013, the Silchar Division of LICI issued a certificate stating that the policy bearing No. 490915541 on the life of Siraj Uddin Choudhury was not assigned and the nominee of the policy was the present respondent No. 4 and a death claim payment of the policy has been made in favour of the nominee of Rs. 1,32,264/- vide cheque No. 0081680 dated 17.09.2009 and the cheque was duly encashed. On receiving the said information, the Branch Manager of the petitioner approached the learned Executing Court and filed an objection against the execution and prayed for dismissal of the execution case against the petitioner herein. The learned Executing Court, i.e., learned Munsiff No. 1, Hailakandi, by the impugned order dated 07.01.2
