Central Bank Of India vs Kalinath Roy
2021 Latest Caselaw 1913 Gua

                                                                                   Page No.# 1/5

GAHC010271402017




                                THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : CRP(I/O)/52/2017
                                                     with
                                       C.R.P. No. 110/2017 (Disposed of)

            CENTRAL BANK OF INDIA
            ULUBARI BRANCH, GUWAHATI-7, REPRESENTED BY CHIEF MANAGER



            VERSUS

            KALINATH ROY
            S/O LATE KAMINI KR. ROY, BHASKAR NAGAR, GUWAHATI-18



Advocate for the Petitioner     : MR V K DEWAN

Advocate for the Respondent : MR.R J BORDOLOI


                                            BEFORE
                   HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                           ORDER

20.08.2021

Heard Mr. G. P. Bhowmik, learned Senior counsel assisted by Ms. M. Kalita, learned counsel appearing for the petitioner/judgment-debtor. Also heard Mr. Rubul Ali, learned counsel for the opposite party/decree holder.

2. The erstwhile Purbanchal Bank Ltd. was merged with the petitioner Central Bank of India in the year 1989. The opposite party/decree holder availed financial accommodation of Rs.1 lakh for his business purpose from the erstwhile Purbanchal Bank, Ulubari Branch, Guwahati now the Page No.# 2/5

Central Bank of India, Ulubari Branch, Guwahati. On his failure to repay of the outstanding amount to the said loan account, the Central Bank filed recovery case against him in the learned Court of Civil Judge (Senior Division) No.2 at Guwahati for recovery of Rs. 28,955.00 being Money Suit No. 36/1986 (Original Money Suit No. 65/1982) which was dismissed on 05.03.1999. Against the same, the Central Bank preferred an appeal before the Court of learned Additional District Judge, Kamrup, Guwahati being Money Appeal No. 03/1999, which too was dismissed on 01.04.2002. Against the same, the Central Bank preferred a review being Misc. Review Case No. 5/2002 before the Court of learned Ad-hoc Additional District Judge, Kamrup, Guwahati and that was dismissed on 08.09.2003. Thereafter, the said Bank preferred Revision Petition before this Court which was also dismissed and the Bank could not recover the loan amount.

3. The opposite party as plaintiff filed Title Suit No.346/2003 with a prayer for declaration that the plaintiff is entitled to receive the alleged pledged articles in Bank locker No.23 of the erstwhile Purbanchal Bank Ltd along with Rs.10,000 deposited for the purpose of compromising the Money Suit No.65/1992 that was preferred by the erstwhile Purbanchal Bank with further prayer that the judgment-debtor (the concerned Bank) is liable to return the pledged articles and a decree for realization of the value of the property if the defendant fails to return back the pledged articles with said Rs.10,000 deposited for the purpose of compromise of the said Money Suit No.65/1992 along with the decree. Said Title Suit No.346/1993 was dismissed on 28.11.2005 by learned Civil Judge (Senior Division) No.3, Kamrup, Guwahati against which the plaintiff-decree holder preferred an appeal before this Court being RFA No.46/2006.

4. After hearing the parties including the present petitioner Bank, this Court by judgment and order and decree dated 11.09.2013, disposed of said RFA No.46/2006 holding that the plaintiff, i.e., present opposite party/decree holder is entitled to a decree for return of the gold and the gold ornaments weighing about 38 Tolas. However, by the said decree dated 11.09.2013, it was clarified that the present opposite party/decree holder shall not be entitled for a decree of Rs.10,000 as he had paid the said amount in the Bank during pendency of said Money Suit No.65/1982 without any compulsion, but of his own volition. By the said decree dated 11.09.2013, it was also clarified that in the absence of any evidence on record relating to the damage caused to him said plaintiff, the opposite party herein is not entitled to any compensation.

5. The opposite party filed Title Execution No.15/2013 before the Court of Civil Judge No.3, Page No.# 3/5

Kamrup (Metro), Guwahati for execution of said decree dated 11.09.2013 against which the present petitioner Central Bank also filed objection and a petition under Section 47 of the CPC read with Section 151 thereof challenging the executability of the said decree dated 11.09.2013. The petitioner Bank urged that the records made available to it by the erstwhile Purbanchal Bank shows that on 13.04.1983 said Bank wrote a letter, marked as document No.1, to the opposite party requesting him to come to the concerned Bank premises to facilitate them to change the locker for better services intimating him that on his failure the Bank shall be at liberty to break open the said locker and the said letter of the Bank was duly received by the opposite party. On 02.05.1985 the erstwhile Purbanchal Bank Ltd. broke open the said locker of the opposite party in presence of Magistrate and witness and an inventory was prepared of the said locker marked as document No.2. When the Civil Nazir was sent to the Bank to execute the decree on 16.01.2015, he too prepared an inventory of the gold ornaments of the opposite party marked as document No.3 and that both the inventories document Nos. 2 and 3 tallies with each other. It is stated that the petitioner Bank is ready and willing to handover the gold ornaments as per the inventory dated 16.01.2015 prepared by the Civil Nazir and that the said document No.3 though was offered to the decree-holder, but he declined to receive the same. The opposite party also filed an objection against the petition filed by the present petitioner under Section 47 read with Section 151 CPC.

6. Learned Civil Judge No.3, Kamrup (Metro), Guwahati by its order dated 15.03.2006 passed in Title Execution No.13/2003 rejected the said petition of the petitioner under Section 47 read with Section 151 CPC holding that the executing Court cannot travel beyond the decree and the executing Court is duty bound to give effect to the decree as it stands and cannot pass any order rendering the judgment passed as futile nor it can sit over as an appellate Court to examine the correctness or otherwise of the decree passed.

7. The executing Court held that as per the decree dated 11.09.2013 passed in RFA No.46/2006, the plaintiff/the opposite party herein is entitled to a decree for return of the gold and the gold ornaments weighing about 30 Tolas whereas as per the inventory of the Civil Nazir dated 16.01.2015 document No.3 he found that the concerned locker contained only 18 Tolas and 12 Anas = 218.5 grams of gold ornaments instead of 38 Tolas of gold. The executing Court determined that as such it cannot direct the concerned decree holder/opposite party herein to receive said 18 Tolas 12 Anas of gold ornaments instead of 38 Tolas of gold and the gold ornaments, specified in the decree dated 11.09.2013 noted above.

Page No.# 4/5

8. Being aggrieved with the said order dated 13.06.2006 of the learned Civil Judge No.3, Kamrup (Metro), Guwahati passed in Title Execution Case No.15/2013, the petitioner Bank has filed this application under Article 227 of the Constitution of India read with Section 51 CPC praying for setting aside the impugned order dated 13.06.2016 and to allow its petition No. 5728/2016 filed under Section 47 read with Section 151 of the CPC arising out of Title Execution No.15/2013 and to direct the opposite party to accept the gold and gold ornaments as per the inventory prepared by the Civil Nazir on 16.01.2015.

9. Document No.1 letter dated 13.04.1983 of the erstwhile Purbanchal Bank Ltd annexed to this petition relates to locker No.23 (C) of the opposite party. Document No.2 the inventory prepared on 02.05.1985 in presence of the Magistrate also pertains to locker No.23 of the opposite party, that contains two pieces of necklace, one piece of panja, one piece of baju, one piece of tikli, two pairs of earring, one number ring, one number nakfuli, one piece of smaller pin in a packet and one pair of bracelet, one pair of churi (red) and one number of ring in another packet, altogether 16 items.

10. From the records of the RFA No.46/2006, it is seen that opposite party in his Title Suit No.346/2003 claimed for gold ornaments and jewelry, weighing about 38 Tolas kept in his locker No.23 of the erstwhile Purbanchal Bank that has been amalgamated with Central Bank of India. In the judgment and order and decree dated 11.09.2013, passed in RFA No.46/2006, this Court specifically mentioned about locker No.23 of the present opposite party in the concerned Branch of the erstwhile Purbanchal Bank and decreed that the opposite party herein is entitled to a decree for return of gold and gold ornaments weighing about 38 Tolas. Said judgment and order and decree dated 11.09.2013 passed by this Court in RFA No.46/2006 has not been challenged by the petitioner Bank though it was the sole respondent in the Title Suit No.46/2013 as well as in the RFA No.46/2006. It is also noticed from the document No.3 annexed to this petition that it pertains to locker No.21 (old) packed in presence of Branch Manager and Accountant with the date 31.01.1992, kept in cash chafe at Central Bank of India, Ulubari Branch that was opened under CCTV camera, in presence of the Civil Nazir of the Judge Court, Zarikarak, the decree- holder himself, two Advocates, one independent witness, one goldsmith, one jeweler, one pensioner and two bank officials including the Branch Manager and Senior Manager of the Central Bank of India, Ulubari Branch. The document No.2 relates to locker No.23 of the erstwhile Purbanchal Bank Ltd., Ulubari Branch that belongs to the opposite party, which was opened on 02.05.1995 in presence of the Magistrate containing 16 items of jewelry in two different packets.

Page No.# 5/5

Apparently, the inventory dated 02.02.1985, document No.2 and the inventory dated 06.01.2013 document No.3 are not similar.

11. It is settled that the executing Court cannot travel beyond the decree and is bound to give the effect to the decree as it stands.

12. Considering the above, this Court did not find any illegality to the order dated 13.06.2016 passed by learned Court of Civil Judge No.3, Kamrup (Metro), Guwahati in Title Execution No.15/2013 rejecting the Petition No.5728/2016 filed by the judgment-debtor, petitioner Bank herein under Section 47 read with Section 151 CPC.

13. Accordingly this petition being devoid of merit stands rejected.

14. At this stage, learned counsel for the opposite party Mr. Ali on instruction submits that failure on the part of the judgment-debtor, petitioner Central Bank to return/handover the gold and the gold ornaments weighing about 38 Tolas in his locker No.23 with the erstwhile Purbanchal Bank Ltd., Ulubari Branch, Guwahati as decreed by this Court in its judgment and order and decree dated 11.09.2013 passed in RFA No.46/2006, the decree-holder/opposite party be provided with equivalent amount of money for said gold and the gold ornaments weighing about 38 Tolas as decreed.

15. In the event of making such prayer by the decree-holder/opposite party, it is observed that the concerned executing Court shall consider such prayer of the concerned decree-holder in accordance with law, as in terms of the aforementioned decree dated 11.09.2013 passed in RFA No.46/2006 as the judgment-debtor Central Bank of India is bound to return the gold and the gold ornaments weighing about 38 Tolas to the decree-holder pursuant to the decree dated 11.09.2013 passed in RFA No.46/2006.

16. Accordingly, this revision petition stands disposed of.

JUDGE Comparing Assistant