DILESWAR SAHU Vs. LAND ACQUISITION OFFICER SAMBALPUR

JUDGEMENT

(1.) This revision at the instance of the decree-holder is directed against an order of the executing Court recording an order dropping the execution proceeding on full satisfaction. The execution case was started for satisfaction of an award in a Land Acquisition Case wherein the decree-holder was awarded compensation of Rs. 67,300/- with 15% of solatium and interest at the rate of 6% per annum from the date of delivery of possession of the land till the receipt of payment. An appeal was preferred by the State registered as First Appeal No. 135 of 1973 in this Court. In the meantime the execution case having been levied, the State moved for stay of the same. An order of stay was passed which was modified on 22-3-74 directing the State to deposit the entire decretal amount including the advocate's fee within six weeks in the executing Court failing which the order of stay was to stand vacated. After some deposits were made an order was passed by this Court on 14-3-75 allowing the petitioner to withdraw half of the amount in deposit on furnishing property security to the satisfaction of the executing Court and the other half was to remain in deposit till the final disposal of the appeal. The petitioner was not able to furnish security and withdraw the amount as directed. A further deposit was also made on 11-12-75. The First Appeal was dismissed on 5-8-83 and thereafter the State filed an application before the executing Court under S.47 of the C.P.C. registered as Miscellaneous Case No. 3/85 with a prayer for dismissing the execution case on full satisfaction since it had already deposited the decretal amount. The Miscellaneous case was dismissed by the executing Court on 23-3-85 holding that the amounts had been deposited only as security for obtaining stay and not as discharge of the decretal dues. On 13-12-85 a fresh memo was filed by the State for the very same relief for dismissing the execution case on full satisfaction. On the said memo an order having been passed dismissing the execution case as completely satisfied, the petitioner has come up in tills revision.

(2.) The learned Subordinate Judge in dismissing the execution case has come to the conclusion that the amount in deposit by the State was not made by way of security but towards the decretal amount and being of such view has passed the impugned order.

(3.) The view taken is wholly untenable. A deposit made in the execution Court in pursuance of a direction issued under O.41, R.5 of the C.P.C. is never in discharge of the decree as contemplated under O.21, R.1 of the C.P.C. The amount is deposited only by way of security over which the decree-holder is not given any control. The amount lying in deposit with the Court besides being beyond the reach of the decree-holder is also liable to be substituted with any other kind of security as the judgment-debtor may seek to furnish with permission of the Court. Even a direction of the Court that the amount in deposit may be withdrawn by the decree-holder on furnishing security does not transform the deposit to that of discharge of the decree it being only a conditional payment to the decree-holder who under the decree has an unqualified right to withdraw any amount lying in deposit in satisfaction of the decree. The matter was conclusively set at rest by decision of the Supreme Court in AIR 1968 SC 1047, P.S.L. Ramanathan Chettiar v. Ramanathan Chettiar. It is next contended by Mr. Sahu, the learned Standing Counsel, that besides the fact that the amount when deposited should have been taken to be in satisfaction of the decree, even otherwise, the full amount having already been deposited, it must be taken that after dismissal of the first appeal the deposit enured towards the decree and hence there is no defect in the order of the learned Subordinate Judge dismissing the decree on full satisfaction. It is on the other hand contended by Mr. J.P. Misra, learned counsel for the petitioner that the amount having never been deposited towards the decretal dues, it could not on its own become such a deposit after dismissal of the First Appeal in this Court and the petitioner is entitled to interest on the decretal amount till the actual payment.