M/S.Lavanya Chit Fund Private ... vs Billa Viswanadham And 4 Others
2023 Latest Caselaw 2299 Tel

       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,

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

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

AIR 1957 Mad. 777

AIR 1943 Lah 166 (H)

AIR 1953 Calcutta 717

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.

AIR 1936 Pat 76 (J)

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

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