AMMU Vs. DEVAKI AMMA

JUDGEMENT

(1.) The only question that arises in this second appeal is whether the judgment debtor can recover back certain amount paid under the decree to the decree holder in execution, which is later found to be in excess of the amount due under the decree. It is not disputed that satisfaction has been entered of the decree, pursuant to the payment made by the judgment debtor and execution has been closed. Under such circumstances does the court executing the decree become functus officio, whether any proceedings at the instance of the judgment debtor for refund would come within S.47 of the C.P.C. and assuming that it is open to the judgment debtor to claim refund under S.47 notwithstanding the recording of satisfaction, whether in the facts and circumstances of the case any such refund could be claimed as a matter of course are the question which have to be decided in this appeal.

(2.) The decree was for money charged on properties. The judgment debtor had executed a hypothecation in favour of the Cochin Land Mortgage Bank reserving Rs. 3000/- to be paid towards the decree amount. The heirs of the decree holders filed E. A. 1844 of 1963 the prayer in which was to direct the amount reserved with the bank to be paid to them. This was because the Bank had informed the decree holder that payment will be made on intimation from the court. To this course the judgment debtors had no objection as seen from the endorsement made by their advocate on E. A. 1844/63. There was no dispute by the judgment debtor at that time that Rs. 3000/- would not be paid as it was not due towards the decree. But the application was dismissed since the court held that there was no provision justifying the court in calling for such amount from this Bank. Thereafter a fresh E. A. was filed by the decree holder on E. A. 2092/63 to record satisfaction in view of the consent of the judgment debtors to draw Rs. 3000/- reserved with the Land Mortgage Bank. It is seen that on 3-12-1969 the court recorded satisfaction of the decree. Thereafter the decree holders drew Rs. 3000/- from the Cochin Land Mortgage Bank on the strength of the satisfaction entered by the court. After a period of 7 months the first defendant judgment debtor moved the court for recovery of a sum of Rs. 262-42, being the amount which, according to him, was received in excess by the decree holders. It was the case of the first defendant judgment debtor that Rs. 3000/- would not be due, that the first defendant agreed to the payment of Rs. 3000/- to the decree holders by mistake and on right calculation the amount due would be less by Rs. 262-42. The court which was so moved held that the decree holders were liable to refund such amount and it allowed the application of the first defendant. This was reserved in appeal, that court holding that the decree holder is not bound to refund the amount in the circumstances of the case It is against this that the judgment debtor first defendant has come up in second appeal

(3.) As I have mentioned earlier the amount of Rs. 3000/- was what the decree holders wanted to be paid to them and the judgment debtor at that time agreed that they may receive from the land Mortgage Bank. Subsequently when the decree holders moved for recording satisfaction there was no notice to the judgment debtor. All the same, payment was made on behalf of the judgment debtor by the bank, on the strength of the satisfaction entered and unless the judgment debtor had a case that such payment was made without authority it must be taken that voluntarily the judgment debtor paid a sum of Rs. 3000/- to the decree holder. If the case of the judgment debtor is that the Bank paid the excess sum without authority there would be a cause of action against the Bank. I am not concerned with such a case here as there is no challenge before me to the authority of the Bank to pay Rs. 3000/- and even if there is such a challenge the remedy of the judgment debtor lies elsewhere. Therefore, for practical purposes it may be taken that, consistent with the earlier consent by the consent by the counsel, an amount of Rs. 3000/- was paid voluntarily by the judgment - debtor.