TANTIRAM HARPRASHAD VAISHYA Vs. BALDHARISINGH TEJSINGH THAKUR

JUDGEMENT

(1.) THE applicant is a decree -holder and during the execution proceedings, the non -applicant was appointed as 'Supurdgidar' of certain movable properties of he judgment -debtor. The non -applicant failed to produce the property entrusted to him when ordered to do so and, in consequence, the Court, inter alia, ordered attachment of the compensation amount payable to the non -applicant under the M.B. Zamindari Abolition Act. Subsequently, some of the articles entrusted to the non -applicant, were produced by him and he also paid Rs. 400 for the loss of one buffalo and the grass -cutting machine. Having done this, the non -applicant prayed that he might be released from the Supurdgi. The Tahsil Court, after hearing the applicant and the non -applicant, passed order on 3 -10 -55 releasing the non -applicant from his Supurdgi. The Tahsil Court, however, did not pass any order in regard to the subsisting attachment of non -applicant's compensation amount. It is alleged that when the non -applicant approached the Compensation Authorities for the payment of his compensation he came to know that the said compensation amount had been paid off by the Tahsil to the applicant -decree -holder on 17 -2 -58. Thereupon he represented to the Tahsil Court that the said amount was not payable to the decree -holder inasmuch as he (non -applicant) had been relieved of his responsibilities as Supurdgidar as early as 3 -10 -55 and the amount wrongly paid to the applicant should be refunded to him. The Tahsildar rejected his prayer, but the Sub -Divisional Officer set aside the order of the Tahsildar and directed that the refund may be made to the non -applicant after due enquiry. The applicant -decree holder then approached the Additional Commissioner in second appeal, but the same was dismissed and the Additional Commissioner held that the Court had inherent power under section 151 of the Civil Procedure Code to order the refund. The Additional Commissioner's order has now been challenged in revision.

(2.) THE main contention of the learned counsel for the applicant is that the order of the Tahsiidar dated 3 -10 -55 has been misread by the Sub -Divisional Officer and the Additional Commissioner. According to him the non -applicant Supurdgidar was released of his Supurdgi subject to the attachment of his compensation amount. Secondly, although it was within the knowledge of the non -applicant that his compensation amount had been attached, he took no steps to recover it. This was because the non -applicant knew that the Tahsildar had not set aside the attachment in respect of compensation amount. The execution was struck off after payment of attached compensation amount to the decree -holder on 17 -2 -58 in satisfaction of the decree. It was after this order i.e., on 18 -2 -68 that the non -applicant applied for the refund of the compensation amount. Since the non -applicant did not appeal against the order of the Tahsildar dated 3 -10 -55, the same had become final. Lastly, it was not open to the execution Court to start restitution proceedings under section 144 of the Civil Procedure Code as there was no variation or amendment of the decree. If the non -applicant thought that the applicant had appropriated something which was not due to him, it was open to him to seek his remedy in the civil Court. The inherent power cannot be exercised when some other remedy under the law may be open to an aggrieved person.

(3.) IN the above view the revision petition is dismissed with cost.