Prashant Navandar, Hyd vs Vijay Kumar Joshi, Hyd
2021 Latest Caselaw 1659 Tel

          THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

             CIVIL REVISION PETITION No.154 of 2017

ORDER:

This revision is directed against the order dated 25.10.2016 in

E.A.No.599 of 2016 in E.P.No.287 of 2015 passed by the I Senior Civil

Judge, City Civil Court, Hyderabad, whereunder the application filed

under Section 151 of the Code of Civil Procedure by the

respondent/judgment debtor to direct the petitioner/decree holder to

redeposit the excess amount of Rs.59,300/- received by him in the

execution petition along with interest at 12% p.a. from the date of

deposit on 23.12.2015 has been allowed.

2. A money suit in O.S.No.278 of 2013 was decreed by the

judgment dated 22.07.2015. As against recovery claim of

Rs.1,94,200/- along with interest, the suit was partly decreed for an

amount of Rs.1,10,000/- with a pre-suit interest at 12% p.a.

(Rs.39,600/-). The total being Rs.1,49,600/- along with future interest

at the same rate from the date of suit till realization on the principal

sum of Rs.1,10,000/-. However, in the decree it was shown that the

suit was partly decreed for a sum of Rs.1,10,000/- along with 12%

interest per annum from the date of suit till realization for principal

sum of Rs.1,10,000/-, costs of Rs.9,628/- was also awarded. On the

face of it, the decree was not correctly prepared and was not in

accordance with the judgment.

3. The Court below, while answering issue No.3, in the suit

judgment, granted a sum of Rs.1,10,000/-, being principal and

Rs.39,600/- being interest at 12% p.a. from the date of Ex.A1 (money

receipt) till date of suit. The interest component of Rs.39,600/- from

the date of Ex.A1 till suit was not incorporated in the decree.

4. While the matter stood thus, it appears that Rs.1,52,628/- was

deposited by the judgment debtor towards part satisfaction of the

decree under demand draft dated 21.09.2015. The decree holder,

having received the said amount, filed EP.No.287 of 2015 for a sum of

Rs.48,300/- and warrant was issued for attachment of immovable

properties of judgment debtor. When the Court Bailiff went for

execution of warrant, the judgment debtor gave demand draft dated

23.12.2015 for Rs.59,300/-. In total, the judgment debtor paid a sum

of Rs.2,00,928/-

5. It is the case of the judgment debtor that though the decree

holder is entitled to Rs.1,52,628/-, he claimed an amount of

Rs.48,300/-, which was paid on coercion of Bailiff. EP was closed on

12.04.2016. Prior to that cheque petition was filed by the decree

holder in the first week of March 2015, which was allowed. The

judgment debtor filed a calculation memo claiming that he is entitled

for redeposit of Rs.48,300/- with interest at 12% p.a. from the date of

deposit on 23.12.2015 and costs of Rs.1,000/- for the proceedings.

6. In the counter affidavit, the decree holder, while denying the

allegations in the petition for refund, contended that the judgment

debtor voluntarily deposited a sum of Rs.1,41,622/- towards part

satisfaction and failed to deposit the balance amount. The decree

holder was forced to file EP.No.287 of 2015 for recovery of balance

amount of Rs.59,300/-. The Court below ordered attachment of

EP schedule property. When the Court bailiff went to execute the

warrant, the judgment debtor was ready with a demand draft dated

23.12.2015 for a sum of Rs.59,300/- which was drawn as per the own

calculation of the judgment debtor as per the judgment. The decree

holder further stated that he has not claimed any excess amount as

alleged. The decree was passed for Rs.1,49,600/-, out of which

Rs.1,10,000/- was the principal component and Rs.39,600/- was the

pre-suit interest component at 12% p.a. from the date of Ex.A1 till

date of filing of the suit and future interest was also awarded at

12% p.a. on principal amount of Rs.1,10,000/- from the date of suit

till realization.

7. The executing Court, having noted that decree was passed for a

sum of Rs.1,10,000/- + Rs.39,000/-, total amount being

Rs.1,49,600/- with future interest at 12% p.a., further noted that the

decree was prepared showing that suit was partly decreed for a sum of

Rs.1,10,000/- with interest at 12% p.a.. The executing Court

specifically pointed out that there is a discrepancy in preparation of the

decree. The Court below also noted that the decree is not in

consonance with the judgment. However, surprisingly, the Court below

held that the decree holder ought to have taken steps for amendment

of decree and that it is the decree, which is executable but not the

judgment. Further, it was for the decree holder to take steps for

amendment of decree, which he did not do so. Accordingly, the

petition was allowed directing the decree holder to refund Rs.48,300/-

along with interest at 12% from the date of deposit on 23.12.2015 till

date of realization.

8. Mr. G. Ravi Chandran, learned counsel for the petitioner,

contended that the Court below ought not to have passed the

impugned order on mere technicalities. Even if there is any mistake in

preparation of the decree, the Court below should have seen that it is

the judgment that is to be looked into. The Court below, having held

that the decree is passed for a sum of Rs.1,49,600/-, erroneously

could not have directed refund of the alleged excess amount. The

amount whatever paid by the judgment debtor was a voluntary act

and it is in consonance with the judgment and decree.

9. Mr. M.R. Harsha, learned counsel for the respondent, contended

that it is the decree, which is enforceable and not the judgment.

The decree holder, having not taken steps to get the decree amended

cannot be permitted to lay a claim on the excess amount over and

above what is shown in the decree. The executing Court is only

concerned with the amount reflected in the decree and the Court

below has rightly passed the impugned order directing refund of

excess amount received by the decree holder.

10. Heard both sides.

11. Section 152 CPC empowers the Court to correct mistakes in the

judgment, decree or orders. The said provision is extracted below:

152. Amendment of judgments, decrees or orders.-- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

12. This provision is founded on the legal maxim 'actus curiae

neminem gravabit' - an act of Court shall prejudice no man. It is clear

from the above provision that the Court has got suo motu power to

amend a judgment or decree. The decree holder or the judgment

debtor does not have any role in the preparation of the decree.

However, an application could be filed by any one of them for

amendment. When the Court below has noticed that there was a

mistake in the decree and that the decree was not in consonance with

the judgment, the Court should have amended the decree by

exercising suo motu power. Instead the Court below shifted the blame

on the decree holder saying that it is the fault of the decree holder for

not taking steps to amend the decree.

13. This Court is of the opinion that such an approach of the Court

below is highly deplorable. It is not as if that the Court did not have

knowledge of the mistake crept in the decree. As a matter of fact,

the Court below specifically pointed out that there is discrepancy in the

decree. In such an event, the Court below should have exercised its

suo motu power under Section 152 CPC to correct the decree. Instead

the Court choose to exhibit a strange attitude, as if the Court would

never pass orders for amending a decree unless such an application

for amendment is filed by the concerned party.

14. On a perusal of the record, this Court is of the prima facie

opinion that the decreetal amount has not been correctly mentioned in

the decree and the pre-suit interest component of Rs.39,600/-

awarded in paragraph 10 of the judgment is missing in the decree.

15. In the light of the above observations, the civil revision petition

is allowed setting aside the impugned order dated 25.10.2016.

The matter is remitted back with a direction to the Court below to

exercise suo motu power under Section 152 CPC for correction of the

decree by giving opportunity of hearing to the petitioner and the

respondent. The alleged excess amount shall be paid to the decree

holder or the judgment debtor subject to the outcome of such

application. The said exercise shall be completed within a period of one

month from the date of receipt of a copy of this order.

Pending miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________ B. VIJAYSEN REDDY, J June 17, 2021/DSK