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1977 Supreme(Ker) 239
Judges : K.K.NARENDRAN
kamalakshi amma - Appellant
Versus
ouseph - Respondent
Case No : C. R. P. No. 2822 of 1976
Decided On : 10/25/1977
Advocates Appeared :
M. G. Vishnu Namboodiri; For Petitioner Thomas V. Jacob; For Respondent
The duty of the court to prevent abuse of process and ensure justice, leading to the exercise of inherent powers under S.151 in appropriate cases.
Headnote:
Attachment - Third Party Payment - S.144, S.151, Order XXI R.58 and 59 of the Code of Civil Procedure - The court discussed the principles of restitution under S.144 and inherent powers under S.151, as well as the provisions of Order XXI R.58 and 59. It emphasized the duty of the court to prevent abuse of process and ensure justice, and the exercise of inherent powers in appropriate cases.
Fact of the Case:
The petitioner obstructed the attachment of movables, paid the decree amount under protest to avert attachment, and filed Execution Applications for dismissal of the attachment petition and return of the amount. The execution court dismissed the applications, leading to the petitioner's challenge in the Civil Revision Petition.
Finding of the Court:
The court dismissed the Civil Revision Petition, emphasizing that no remedy under Order XXI R.58 and 59 was possible as no attachment was made. It acknowledged the absence of specific provisions for return of amount paid under protest but highlighted the duty of the court to prevent abuse of process and ensure justice through the exercise of inherent powers under S.151.
Issues: The issues involved the entitlement of a third party to the return of amount paid under protest and the maintainability of petitions under S.151 and Order XXI R.58 and 59 when no attachment was effected.
Ratio Decidendi: The court clarified that no remedy under Order XXI R.58 and 59 was possible as no attachment was made. It emphasized the duty of the court to prevent abuse of process and ensure justice, leading to the exercise of inherent powers under S.151 in appropriate cases.
Final Decision: The Civil Revision Petition was dismissed, with no order as to costs.
1. The petitioner in Execution Applications Nos. 101 and 102 of 1976 in O. S. No. 303 of 1974 in execution on the file of the Munsiff's Court, Muvattupuzha is the petitioner in this Civil Revision Petition. In the above suit, which was decreed against the petitioner's husband and another, the petitioner was not a party. The respondent decree holder took out execution and in execution an order was issued by the Court to attach certain movables. Accordingly, the Amin came to the spot to effect the attachment with Police help. The petitioner obstructed contending that the movables sought to be attached really belonged to the petitioner and not to her husband the judgment-debtor. As there was Police help, the petitioner had no other go but to pay the decree amount to save the movables from attachment. So, according to the petitioner, she paid the amount under protest. Though the payment under protest is recorded in the report of the Amin dated 24 3 1976. as per that report the payment was made for and on behalf of the judgment-debtor, the petitioner's husband. But as per the receipt given to the petitioner by the Amin the payment was not made on behalf of anybody. It is pertinent to note that it was a result of a correction by overwriting in the report the payment became for and on behalf of the husband judgment-debtor The next day the petitioner filed the Execution Applications referred to above. Toe prayer in E. A. 101 of 1976 filed under Order XXI R.58 and 59 of the Code of Civil Procedure was for the dismissal of the petition for attachment finding the possession of the petitioner of the movables sought to be attached E A. No. 102 of 1976 was filed under S.151 of the Code of Civil Procedure for the return of the amount paid by the petitioner on security pending the decision of E. A. No. 101 of 1976. The Execution Court simply dismissed E A. No. 102 of 1976 on 10 61976 without giving any reason Thereafter, on 22 61976 E A. No. 101 of 1976 was dismissed as not maintainable as no attachment was, as a matter of fact, effected and that the decree amount was paid and attachment averted. Though no attachment was as a matter of fact effected, the objections filed by the respondent decree holder to the Execution Applications before the execution court proceeded on the basis that the attachment was made.
2. The petitioner challenges the above two orders of the execution court in this Civil Revision Petition. Two contentions are raised. They are (1) A third party who paid under protest the decree amount to prevent attachment of his movables is entitled to the return of the amount paid and a petition for the same is maintainable under S.151 of the Code of Civil Procedure; and (2) even though no attachment was effected, a third party who averted attachment of his movables by paying the decree amount under protest is entitled to move the execution court under Order XXI R.58 and 59 of the Code of Civil Procedure for the dismissal of the petition for attachment.
3. In S. Chokalingam Asari v. N.S. Krishna Iyer (AIR. 1964 Madras 404) it is said:
"S. 144 merely embodies the cardinal principle of law that acts of Court should not be allowed to work any injury on the suitors and it is the clear duty of the Court to place the parties in the position which they would have occupied but for the erroneous order or decree which it had passed. The section is not exhaustive of the powers of the Court to order restitution and in suitable and appropriate cases, where ends of justice require, restitution can be and has been ordered under the Court's inherent jurisdiction. For instance, variation of the decree or the setting aside of the decree need not necessarily be in an appeal but it may be in a separate proceeding, in which case restitution is ordered under inherent jurisdiction apart from the provision under S.144."
In Ramnandan Pandey v. Jagarnath Rai (AIR. 1958 Patna 547) it is said:
"Acting in exercise of inherent powers under S.151 a Court ca
