THE HON'BLE SMT JUSTICE M.G.PRIYADARSINI
CIVIL REVISION PETITION No. 283 OF 2019
O R D E R:
This revision is filed by the decree holder to revise the docket order of the executing Court passed in SR No. 5703 of 2018 in unnumbered E.P. of 2018 in O.S.No. 124 of 2012, dated 12.12.2018, wherein the executing Court rejected the E.P. holding that when one attachment order i.e., salary of judgment debtor No. 4 is in force, it is not proper to proceed with simultaneous execution against the immovable property of another judgment-debtor i.e., judgment debtor No. 5.
2. The brief facts of the case are that the decree holder filed suit in O.S.No. 124 of 2012 before the I Additional District Judge, Warangal, against the judgment debtor Nos. 1 to 5, for recovery of amount, on the strength of a chit transaction. It was pleaded that being the prized subscriber, the judgment debtor No. 1 was paid a sum of Rs.2,65,000/- vide chit ticket No. LP2SD-19 dated 25.02.2009; Rs.2,70,000/- vide chit ticket No. LP2SD-17 dated 25.02.2009; Rs.2,53,000/- vide chit ticket No. LP2SD-20 dated 25.03.2009 and Rs.2,54,000/- vide chit ticket No. LP2SD-16 dated 02.05.2009 and judgment debtor Nos. 2 to 4 executed demand promisory notes/guarantee for each transaction on the very same date of transaction day, wherein the property standing in the name of judgment debtor No. 5, 2 MGP,J CRP No. 283 of 2019 clearly described in the schedule, was mortgaged by deposit of title deeds, which was confirmed by executing memorandum of mortgage by judgment debtor Nos. 1, 3 to 5. Having received the prize amounts, the judgment debtor No. 1 failed to pay the instalments and committed default on 15.06.2009. The trial Court after appreciating the evidence available on record, both oral and documentary, has decreed the suit on 28.01.2015 directing the judgment debtor Nos. 1 to 5 to pay Rs.12,53,400/- jointly and severally together with costs of Rs.64,192/- and interest at 12% per annum thereon from the date of filing of the suit till the date of decree and interest at 6% per annum from the date of decree till realization. Seeking execution of the decree, the execution petition filed by the decree holder vide EP(SR) No. 5703 of 2018 was returned by the executing Court on 27.09.2018 with certain objections.
3. Thereafter, the decree holder filed petition vide CRP No. 6234 of 2018 before our own erstwhile united high Court, to set aside the docket order dated 27.09.2018 in EP(SR) No. 5703 of 2018 in O.S.No. 124 of 2012 and the same was closed by the then erstwhile united High Court directing the executing Court to consider the re-presentation of the E.P. by the decree holder.
4. On re-submitting the E.P., the Executing Court vide its order dated 12.12.2018 rejected the Execution Petition holding that since the salary of judgment debtor No. 4 is already 3 MGP,J CRP No. 283 of 2019 attached vide order dated 15.07.2015 in E.P.No. 49 of 2015, the second E.P. i.e., EP(SR) No. 5703 of 2018 in O.S. No. 124 of 2012 is not maintainable as the simultaneous execution against another judgment debtor is not proper.
5. Heard both sides. Perused the entire record.
6. The only contention of the learned counsel for the revision petitioner/decree holder is that the executing Court erroneously rejected the execution petition without observing that simultaneous execution is permissible against different judgment debtors and that the present E.P. is filed seeking attachment of the property against another judgment debtor and therefore, prayed to allow the revision petition.
7. Insofar as the simultaneous execution is concerned, reliance is placed on the decision of Madras High Court in A.K.Subramania Chettiar v. A.Ponnuswamy Chettiar 1, wherein it was held that simultaneous execution, both against the property & person of the judgment-debtors is allowed under Order XXI, Rule 30 C. P. C., which is now settled law as per the decision in Mahomed Hussain Shah v. Co-operative Society for Loans of Shahpur City 2, Uma Kanta v. Benwick & Co., Ltd. 3. It is pertinent to note that the Court has a discretion under Order XXI, Rule 21 C. P. C., to, refuse simultaneous 1 AIR 1957 Mad. 777 2 AIR 1943 Lah 166 (H) 3 AIR 1953 Calcutta 717 4 MGP,J CRP No. 283 of 2019 execution and to allow the decree-holder to avail himself of only one mode of execution at a time. However, thought the salary of judgment debtor No. 4 is attached, no amount was realized to deduct from the decretal amount so far. Moreover, the contempt petition filed by the decree holder in E.A.No. 1 of 2016 was disposed off on 22.02.2018 by eliciting that from December, 2017, the salary of judgment debtor No. 4 was attached and the DDO was summoned. However, the calculation of E.P. did not reflect as to the amount recovered by way of attachment of salary of judgment debtor No. 4.
8. In the view of the facts and circumstances of the instance case, Order XXI, Rule 21 has no relevance. It is the duty of the Executing Court to offer the decree holder all possible and reasonable facilities for realising the decretal amount in as short a time as possible and reliance is placed on the decision of patna High Court in Damodar Das v. Bindeshwari Singh 4. It is also now well settled that when a decree is joint and several, it is always open for the decree holder to execute the decree against any of the judgment debtors either in full or in part, according to his choice. Therefore, the rejection of E.P. is not warranted except seeking clarification as to the deductions/recovery made from the salary of judgment debtor No. 4.
4 AIR 1936 Pat 76 (J) 5 MGP,J CRP No. 283 of 2019
9. In view of the foregoing observations, this Court is of the considered opinion that the decree-holder is clearly entitled for simultaneous execution of a decree passed in terms of Order XX Rule 10 of CPC by more than one of the modes of execution specified in Order XXI Rule 31 of the CPC after ascertaining what is the amount that has to be still realized.
10. Accordingly, the Civil Revision Petition is allowed by setting aside the impugned docket order dated 12.12.2018 passed by Executing Court and the revision petitioner/decree holder is at liberty to approach the executing Court for raising the attachment order, if any, as is permissible in law, so long as it accords with the pleadings, duly ascertaining the amount that is yet to be realized after giving due credit to the amount already realized from the salary of Judgment debtor No. 4. There shall be no order as to Costs.
Miscellaneous applications, if any pending, shall stand closed.
____________________________________ JUSTICE SMT.M.G.PRIYADARSINI Date: 13.09.2023 gms 6 MGP,J CRP No. 283 of 2019 THE HON'BLE SMT JUSTICE M.G.PRIYADARSINI CIVIL REVISION PETITION No. 283 OF 2019 13.09.2023 gms