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Madras High Court
GANESAN
A.V.Kannappa Mudaliar - Appellant
Versus
V.C.Chellakutti Udayar - Respondent
Decided On : 10/13/1971
EXECUTION OF DECREE - ATTACHMENT - CONTINUANCE - DISMISSAL OF EXECUTION PETITION FOR DEFAULT - EFFECT - ORDER DIRECTING CONTINUANCE OF ATTACHMENT - VALIDITY - POST-DECRETAL ARRANGEMENT - ADJUSTMENT OF DECREE - CERTIFICATION OR RECORDING - NECESSITY - ORDER 21, RULES 2 AND 57(1), C.P.C.
Fact of the Case:
The appellant, a wholesale dealer in vegetables, filed a suit against the respondent, a retail dealer, for recovery of Rs.1574, being the amount due for the purchase of vegetables and interest. An ex parte decree was passed in favor of the appellant on 24-6-1964. The appellant filed an execution petition for realizing the decree amount by attachment and sale of the respondent's properties. The execution petition was dismissed for misdescription of the village in the schedule. A second execution petition was filed, and the properties were attached. The respondent filed an application to set aside the ex parte order and filed a counter affidavit contending that the decree was fully satisfied by being merged in the running account and was therefore not executable. The executing court dismissed the execution petition but directed the attachment to continue. The appellant filed a fresh execution petition, and the respondent raised the same objections as in the earlier execution petition. The District Judge dismissed the execution petition, holding that the dismissal of the earlier execution petition was for default on the part of the decree-holder and that the post-decretal arrangement barred the execution of the decree.
Finding of the Court:
The High Court held that the order directing the continuance of attachment, while dismissing the execution petition for default on the part of the decree-holder, was wrong and improper but not void. The Court further held that the post-decretal arrangement between the parties that the decree would not be executed and that the decree amount would merge with the subsequent running account and should be realized in the normal course without recourse to the decree was valid and barred the execution of the decree.
Issues: 1. Whether the order directing the continuance of attachment, while dismissing the execution petition for default on the part of the decree-holder, was valid? 2. Whether the post-decretal arrangement between the parties barred the execution of the decree?
Ratio Decidendi: 1. The Court held that the order directing the continuance of attachment, while dismissing the execution petition for default on the part of the decree-holder, was wrong and improper but not void. The Court relied on the provisions of Order 21, Rule 57(1), C.P.C., which states that where an execution petition is dismissed for the default of the decree-holder, the order shall state that the attachment shall cease. The Court held that the executing court had no discretion to continue the attachment notwithstanding the dismissal of the execution petition. 2. The Court held that the post-decretal arrangement between the parties that the decree would not be executed and that the decree amount would merge with the subsequent running account and should be realized in the normal course without recourse to the decree was valid and barred the execution of the decree. The Court relied on the provisions of Order 21, Rule 2, C.P.C., which provides that where a decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such adjustment to the Court whose duty it is to execute the decree. The Court held that the executing court was bound to execute the decree even if the decree had been satisfied fully out of Court, unless the satisfaction had been certified or recorded by the executing court in the manner provided by Rule 2 of Order 21.
Final Decision: The appeal was allowed, and the order of the District Judge dismissing the execution petition was set aside.
JUDGMENT :- E.P. No.57 of 1968 in O.S. No.296 of 1964 on the file of the District Munsif's Court, Vellore, out of which the appeal arises was filed by the appellant herein for realising a sum of Rs.2133-70 the amount due to him from the respondent under the decree passed in the above suit on 24-6-1964 and subsequent costs of execution by sale of the properties described in the schedule to the petition attached on 21-10-1966 in E.P. No.126 of 1966.
2. The material facts are shortly these: The appellant a wholesale dealer in vegetables in Vellore filed the suit in question against the respondent herein for recovery of Rs.1574 made up of (1) Rs.1338-64 the amount due from the respondent a retail dealer for the purchase of vegetables and (2) Rs.235-36 due as interest at 12 per cent per annum from 26-10-1962 till the date of suit and obtained an ex parte decree on 24-6-1964. The decree was subsequently transferred to the Sub-Court, Vellore, for execution and the appellant filed E.P. No.78 of 1966 for realising the decree amount by attachment and sale of the respondent's properties. Because of the misdescription of the village in the schedule, attachment could not be effected and the E.P. was consequently dismissed on 24-8-1966. Thereafter the appellant filed a second E.P. No.126 of 1966 on 29-9-1966 for attachment and sale of the same properties, correctly describing the village as Vadamathimangalam. The respondent remained ex parte and the properties were attached on 7-12-1966 and the terms of proclamation were settled on 2-2-1967.
3. The respondent subsequently filed E.A.95 of 1967 for setting aside the ex parte order in E.P.126 of 1966 and, on the order being set aside, he filed a counter affidavit contending that, soon after the decree was passed, he approached the appellant and requested the latter to accept payment of the decree amount in easy instalments, that the appellant agreed that the decree amount should be shown as a debit in the accounts, that the respondent could continue to have dealings with him and that the decree thus became fully satisfied by being merged in the running account and was therefore not executable. The respondent called upon the appellant to produce his accounts; but as the latter did not produce the same, the executing court passed an order on 11-1-1968 dismissing the E.P. but directing attachment to continue. Subsequently the appellant filed E.P.57 of 1968 out of which the appeal arises on 31-3-1968, and the respondent raised the same objections to the enforceability of the decree which he had raised in the earlier E.A.; and an additional objection was raised, that, as E.P.116 of 1966 was dismissed for default of the appellant, the attachment ceased to have effect and that the present E.P. without a prayer for fresh attachment was not maintainable.
4. The learned Subordinate Judge who heard the execution petition has held that the respondent's version in court that the appellant gave up his claim under the decree and told the respondent that he need not pay the decree amount at all and also agreed to report full satisfaction to the trial court, is at variance with the respondent's contention as set out in his counter statement and is absolutely false and that, in any event, as the adjustment spoken to has not been certified before the executing court, could not be pleaded in defence. The learned Judge has also held that the dismissal of the execution petition for non-production of the accounts by the appellant cannot be construed as a dismissal due to the default of the appellant to prosecute the same, that the production of accounts was not necessary for the prosecution of the execution petition and that the executing court could have gone on with the execution application without the production by the appellant of his accounts and could have drawn an adverse inference from the non-production of the accounts. According to the learned Judge, the disposal of the E.P. was only for statistical
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