JAGDISHCHANDRA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This is an application challenging the order passed by an Executing Court holding that an application under section 47 Civil Procedure Code made before it is maintainable. The factual position in short is as under:

(2.) State Bank of Indore, the non-applicant No. 1 in this case obtained a money decree against M/s. Allied Industries and one Gaya Prasad s/o Dulichand, non- applicant No. 2 and 3 respectively before this Court. In execution of the decree the moveable property of judgment debtor was directed to be attached, when the bailiff went to execute the warrant of attachment Shanti Kumar the proprietor of non-applicant No. 2 was not present on the spot. In his absence the goods were seized and removed from the Office premises of the N. A. No. 2 on 27.9.89. After removing the goods the bailiff locked the room and handed over the key to one Jagdishchandra Vyas, who is said, to be attorney of the landlady of the premises. It was also alleged that the telephone receiver, which was in the name of the applicant Shanti Kumar Agrawal was also seized exceeding the authority given by the warrant. An objection to the maintainability of the application was raised on behalf of Shri Jagdishchandra Vyas and Shri Gaya Prasad. It was stated that Shanti Kumar seems to have surrendered the tenancy rights therefore, Jagdishchandra Vyas as attorney of landlady of premises leased out the premises to Gaya Prasad. Gaya Prasad has produced a photocopy of the rent note executed in favour of him by the landlady. It was contended before me by Shri V. K. Jain learned counsel for the applicant that the Executing Court has decided finally without proper enquiry that the bailiff had exceeded his power and had given the keys of the premises to Jagdishchandra Vyas. He also vehemently argued that in an execution between the State Bank of Indore and M/s. Allied Industries, rights of parties other than the judgment debtor and decree holder could not have been determined and, therefore, an application for directing Jagdishchandra Vyas to restore the judgment debtor in possession was not maintainable under section 47 Civil Procedure Code.

(3.) A perusal of the order would show that the Court has not decided any question between persons who are not parties to the execution proceedings or the decree. If the Judgment debtor complained that the bailiff in the garb of the executing the warrant of attachment has locked the premises and given the key to the judgment debtors landlady thereby securing the ejectment of the judgment debtor from the premises the matter certainly was relating to execution the discharge or satisfaction of the decree and the Executing Court had jurisdiction to entertain the application and the court has not committed any illegality, irregularity. The application was clearly maintainable in holding the application to be maintainable. The apprehension of the learned counsel for the applicant that the court has already decided that bailiff had exceded his powers and, therefore, the applicant would be precluded from canvasing that point before the executing court has no foundation because the Court had stated that it had found in the circumstances of the case that the petition filed under section 47 Civil Procedure Code was maintainable. The executing Court shall consider all the pleas on facts and law taken by the application in his defence excent the plea that the subject-matter of the application was not covered by 3.47 Civil Procedure Code and that the application was not maintainable. That is, therefore, no farce in this application, which is dismissed without notice to the otherside. Record of the Executing Court be sent back immediately.