Bombay High Court
Devidas Tukaram Sidame vs Akola Zilla Veej Kamgar Pat ... on 8 August, 2017
Bench: S.C. Gupte
Judgment 1 wp1554.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1554 OF 2016
Devidas Tukaram Sidame,
aged about 50 years, Occu.: Service,
R/o. Power House Colony,
Mansul Road, Amravati.
.... PETITIONER.
// VERSUS //
Akola Zilla Veej Kamgar Pat Sanstha
(Regd. No.AKL-112), 2nd Floor,
Janki Apartment, Durga Chowk,
Akola, through its Senior Clek.
.... RESPONDENT
.
___________________________________________________________________
Shri J.B.Gandhi, Advocate for Petitioner.
Shri M. Badar, Advocate for Respondent.
___________________________________________________________________
CORAM : S.C.GUPTE, J.
DATED : AUGUST 08, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for both parties.
2. RULE. Rule made returnable forthwith. Taken up for hearing
by consent of the parties.
Judgment 2 wp1554.16.odt
3. The writ petition challenges an order passed by the executing
Court, namely, Civil Judge Senior Division, Akola in Regular Darkhast No.81
of 2007. By the impugned order the learned Judge directed deduction of
Rs.7,500/- per month from the salary of the petitioner herein, who was
Judgment Debtor before this Court till the entire decretal amount of
Rs.2,94,366/- was paid. It is submitted that the Co-operative Court by its
judgment dated 8th March, 2007 directed the present petitioner (Opponent
No.1-Principal Borrower before the Co-operative Court) to pay a sum of
Rs.1,71,129/- together with interest @ 14% per annum on the principal
amount of Rs.1,43,473/- from 30 th June, 2006 till its realisation. It is
submitted that the amount of Rs.2,94,366/- is worked out without
considering the computation of principal amount and interest. It is
submitted that no working of such computation was submitted before the
Court. Though this position is disputed by the respondent, it is a matter of
fact that no consideration of any computation is reflected in the impugned
order. When the Judgment Debtor contests the calculation of the decretal
dues, it is incumbent on the Court to decide the quantum of the decretal
dues. There is evidently no decision on this question in the present case. In
fact, the calculations produced by the respondent along with its reply to the
present petition strangely indicate that through the years, the principal
amount has gone up from original Rs.1,43,955/- to Rs.1,51,733/-. This does
call for a proper computation to be made of the decretal dues.
Judgment 3 wp1554.16.odt
4. The second aspect of the challenge involves the question of
deduction from the monthly salary. It is the case of the petitioner /
judgment debtor that he is receiving net monthly salary of Rs.9,476/-. It is
submitted that under the applicable circular for deduction of salary of a
member of the credit society no deduction could be made in a manner so as
to leave less than 25% salary in the hands of the member. It is submitted
that considering the net salary in the sum of Rs.9,476 (at the relevant time it
was Rs.9,529/- per month), the deduction of Rs.7,500/- per month is not
legal or proper. Once again, the position is contested by the respondent. It
is submitted that the petitioner has, contrary to the rules applicable in this
behalf, taken subsequent loans from other co-operative credit societies and
has offered and allowed deductions from his salary to the tune of
Rs.11,000/- per month to these latter credit co-operative societies. Sadly,
even this aspect of the matter is not reflected in the impugned order. There is
no consideration of this aspect whatsoever in the impugned order.
5. For both these reasons, the impugned order of the learned Civil
Judge Senior Division, Akola cannot be sustained. In the interest of justice,
the matter will have to be remanded to the learned Judge for a fresh
consideration in accordance with law. In the meantime, till the matter is
finally decided upon remand by the learned Judge, the petitioner offers to
allow deduction of Rs.5,000/- per month from his salary towards the deretal
dues of the respondent.
Judgment 4 wp1554.16.odt
6. Rule is made absolute, accordingly, by quashing the impugned
order dated 8th December, 2015 and remanding the applications at Exhs. 27,
28 and 29 to the Court of Civil Judge Senior Division, Akola for fresh
consideration in accordance with law. In the meantime, till the learned
Civil Judge decides the execution application in terms of this order, the
respondent shall be entitled to deduct the sum of Rs.5,000/- per month from
the salary of the petitioner. In the circumstances, there shall be no order as
to costs.
JUDGE
RRaut..
