NINGABHAT Vs. RAMACHANDRA LAKSHMAN RAO IRANI

JUDGEMENT

(1.) I have heard the petitioner's learned Advocate and the respondent's learned Advocate.

(2.) THE dispute in this civil revision petition is within a narrowamb it in so far as the original decree passed in the year 1979 prescribed that the present respondent who is the decree-holder, was entitled to the Schedule 'a' properties and as far as the schedule 'b' properties which was printing machinery is concerned, that he was entitled to a sum of Rs. 6,500/- instead of the machinery being given to him. The present petitioner carried the matter up to this Court through a second appeal and the operation of the decree was stayed until disposal of that matter. This Court however, confirmed the decree while disposing of the r. S. A. on 15-4-1991. The decree-holder thereafter took out execution proceedings in the course of which, as far as the schedule 'a' properties are concerned, no difficulty arose, but as far as the printing machinery is concerned, the respondent was appointed Receiver thereof, but the possession continued with the present petitioner who was the judgment-debtor. The petitioner undertook not to remove the machinery from where it was and it appears from the order passed by the executing Court that despite this undertaking, he removed the machinery to some other place. The executing Court has disapproved strongly of this act on the part of the petitioner. However, as far as the machinery is concerned, the lower Court passed an order that the present petitioner was liable to hand over that machinery to the respondent who was the decree-holder and it is against that order that the present civil revision petition has been filed. The petitioner's learned Advocate vehemently submitted that an executing Court is totally circumscribed by the terms of the decree and that it is not open to the executing Court to exercise any discretion or to interpret the decree and give effect to it in a manner that differs from the actual wording of the decree. Mr. Bhat who represents the petitioner, submitted that this is precisely what the learned Judge has done because, he has taken note of the fact that the petitioner was to pay Rs. 6,500/- if the machinery was not to be delivered, but the learned Judge has come to the conclusion that the option of deciding as to whether the machinery should be handed-over to the respondent or not vested with the executing Court. Mr. Bhat submits that the decree uses the word "sociosh" which means 'instead of ' or 'in lieu of and it is his contention therefore, that the executing court could only order the petitioner to pay the amount of Rs. 6,500/- which was quantified in the decree as being the amount payable 'instead of the machinery. He has attacked the correctness of the order passed by the executing Court and submits that it is necessary that it be interfered with.

(3.) THE respondent's learned Advocate has seriously assailed this interpretation and he draws my attention to the provisions of Order 20, Rule 10 in support of his submission that when possession of movable property is asked for, it is essential that the plaintiff has to quantify the value in the alternative, if the property is for any reason, not available for delivery. The learned Advocate submits that in keeping with this requirement of law, that the plaint when filed, had contained an alternate prayer whereunder the plaintiff had asked for a sum of Rs. 6,500/-, but he submits that this is in the nature of a default clause and would only come into operation if the property is non-existent or not capable of being handed-over to the plaintiff who has obtained the decree. The learned Advocate therefore, submits that having regard to the prayer clause in the plaint, that the decree also specified the amount of Rs. 6,500/- as the value of the machinery and he contends that the executing Court was perfectly correct in law when it directed that the machinery be handed-over to the respondent. His submission proceeds on the footing that there was no difficulty since the machinery was still very much available for the same to have been attached by the executing Court if necessary and handed-over to the respondent and that therefore, the question of any payment in respect of the machinery does not arise. The second submission that the learned Advocate canvassed was that Courts are required to do justice not only at the stage of passing the decree, but also at the stage of execution and that the spirit of Order 21, civil Procedure Code clearly indicates this. He demonstrates that the machinery is not only more useful, but more valuable to his client and that therefore, his client would be prejudiced if the petitioner were to be allowed to retain the machinery and only pay him the amount of Rs. 6,500/- which again was the original value at that point of time when the plaint was lodged. I am concious of this aspect of the matter, but the only difficulty in the way of the respondent's learned Advocate is that this proceeding has now reached the execution stage and at that point of time, there is very little scope for the invocation of any equitable aspects of the matter because, the execution of a decree is almost a mechanical process and at that point of time, the executing Court has very little scope to balance the equities between the parties. However, I do concede that the executing court is required to give full effect to the terms of the decree and in the light of the aforesaid argument, it would be necessary to evaluate as to how best the respondent could be compensated if the machinery cannot be handed-over to him.