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IN THE HIGH COURT OF ALLAHABAD
O. P. GARG
SUNDER THEATRES, REVISIONIST - Appellant
Versus
ALLAHABAD BANK, JHANSI - Respondents
Civil Revision 33 Of 1998
Decided On : 04/15/1998
ORDER XVIII, RULE 17, CPC - RECALL OF WITNESS - SECTION 47, CPC - EXECUTION OF DECREE - VALIDITY OF COMPROMISE DECREE - REPRESENTATIVE SUIT - ORDER XXIII, RULE 3-B, CPC - APPLICABILITY - INTERLOCUTORY ORDER - REVISION - MAINTAINABILITY.
Fact of the Case:
The judgment debtors challenged the validity of a compromise decree passed in a suit filed by the bank for recovery of a loan. They argued that the compromise was entered into without the leave of the court as required under Order XXIII, Rule 3-B, CPC, and that the decree was therefore a nullity. The executing court rejected their application to recall a witness for further examination on the issue of the capacity in which the compromise was entered into.
Finding of the Court:
The court held that the executing court had not committed any illegality or material irregularity in rejecting the application to recall the witness. It also held that the compromise decree was not a nullity, as the provisions of Order XXIII, Rule 3-B, CPC were not applicable to the suit, which was not a representative suit.
Issues: 1. Whether the executing court erred in rejecting the application to recall the witness for further examination? 2. Whether the compromise decree was a nullity for want of leave of the court under Order XXIII, Rule 3-B, CPC?
Ratio Decidendi: 1. The power of the court under Rule 17 of Order XVIII is discretionary and has to be exercised with greatest care and only in exceptional circumstances. Under the garb of this rule it has been held that Courts ought not to recall a witness at the instance of a party in order to fill up the lacuna in the evidence already led. 2. The provisions of Order XXIII, Rule 3-B, CPC are applicable only to representative suits, as mentioned in Rule 8 of Order I, CPC. In the instant case, the suit was a simple suit for recovery of money by the Bank against the debtor establishment and its partners on the basis of the pronote and equitable mortgage. Therefore, Suit No. 137 of 1988, in which a decree on the basis of compromise was filed, did not attract the provisions of Order XXIII, Rule 3b, CPC.
Final Decision: The revision application was dismissed.
( 1 ) THIS is a time barred revision-application under Section 115 of the Code of Civil Procedure in which a prayer has been made that a decree dated 21-12-1990 passed by IVth Additional District Judge, Jhansi on the basis of the compromise filed in Original Suit No. 137 of 1988 Allahabad Bank v. Sunder Theatre and the subsequent order dated 7-11-1997 passed by VIth Additional District Judge, Jhansi in Misc. Case No. 15 of 1993 arising out of Execution Case No. 2 of 1991 be set aside.
( 2 ) COUNTER and rejoinder affidavits have been exchanged. Heard Sri P. P. Srivastava, Senior Advocate, assisted by Smt. Sadhna Upadhyay, learned counsel for the applicant-revisionist and Sri P. K. Bisaria for the opposite party No. 1- Allahabad Bank, Jhansi (Civil Line Branch ).
( 3 ) BRIEFLY stated, the facts of the case are that M/s. Sunder Theatres (Nandani Talkies), Civil Lines, Jhansi and its partners took a loan of Rs. 6,56,000. 00 on 7-11-1977 and executed a pronote as well as created an equitable mortgage. The amount of loan was not paid and consequently, Allahabad Bank, Civil Lines Branch, Jhansi opposite party No. 1 was compelled to file Original Suit No. 137 of 1988 for recovery of Rs. 15,97,728. 00 with stipulated interest at the rate of 17% per annum. A decree under Order 34, Rule 4, CPC was also prayed for. A compromise was entered into between the parties and ultimately the suit was decided in terms of compromise and decree was passed on 21-12-1990. As per the compromise decree, payment was to be made by the defendant-judgment debtor by 28-2-1991 and in case of failure to pay the amount under the decree, they were liable for the costs of the suit (litigation expenses) and interest at 6% per annum w. e. f. 30-4-198 In spite of the decree passed on compromise, payment was not made and consequently, the decree-holder Bank filed an application for execution which was registered as Execution Case No. 2 of 1991. An objection was filed challenging the validity of the decree itself on 29-7-1991 and subsequently, a formal objection under Section 47, CPC was filed by the judgment-debtors on 26-4-1993 which was registered as Misc. Case No. 15/199 3 The decree holder-Bank filed another Execution Application No. 1 of 1994 for recovery of the decretal amount by means of the detention in civil prison of the judgment debtors, i. e. partners/managing Directors of the Sunder Theatres. Another objection under Section 47, CPC registered as Misc. Case No. 23 of 1995 was filed. For the disobedience of the orders of the Court, the decree holder Bank filed a Misc. Case No. 36 of 1996 under Order 39, Rule 2 (a), CPC arising out of Execution Case No. 2 of 1991. It appears that the two execution cases and the two miscellaneous cases under Section 47, CPC were taken together. In Misc. Case No. 15/93, under Section 47, CPC, statement of Mukund Lal Mehrotra one of the judgment debtors and the Managing partner of Sunder Theatres was examined. His statement commenced on 2-4-1994 and was concluded on 3-7-1995, i. e. , after the expiry of about 15 months from the initial date of his entering the witness box. After the evidence of Mukund Lal Mehrotra had been concluded and the Misc. Case No. 15 of 1993 was fixed for argument, an application was moved on behalf of the judgment debtors to recall Mukund Lal Mehrotra, A. W. 2 for further examination and clarification on the point that he had not entered into the compromise in a representative capacity. By the impugned order dated 7-11-1997,the learned Court below has rejected the application under Order XVIII, Rule 17, CPC to recall Mukund Lal Mehrotra for further examination at the instance of the judgment debtor-revisionist. Aggrieved by the order dated 7-11-1997 the present applicant-revisionist (Judgment-debtors) filed a writ petition in this Court, which was registered as Civil Misc. Writ No. 4 of 1998 This writ petition was dismissed on 8-1-1998 by Honble S. R. Singh, J. , with the following observ
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