OMARALI MONDAL Vs. AIBI BIBI

JUDGEMENT

(1.) This appeal arises out of the judgment and decree passed by the learned Subordinate Judge, Third Court, Alipore in Title Appeal No. 1247 of 1963 affirming the judgment and decree passed by the Munsif, First Court, Barasat, in Title suit No. 2 of 1959. The plaintiff is the appellant in the instant appeal and the said suit was instituted for a declaration that the order passed in connection with Title Execution Case No. 76 of 1958 of the said First Court of Munsif at Barasat and the kobala executed in favour of defendants Nos. 1 to 4 in the said execution case were null and void and without consideration. It appears that initially a suit being Title Suit No. 112 of 1952 was instituted and the parties to the instant suit were also parties in the suit. The said suit was disposed of on the following order: -

(2.) Mr. Banerjee, learned Counsel appearing for the plaintiff appellant in the instant appeal, contended that the duty of the executing Court was to give effect to the terms of the decree but in giving effect to the terms of the decree or in interpreting the same, the executing Court cannot make a new decree for the parties. For this contention Mr. Banerjee referred to a Supreme Court decision in (1) V. Ramaswami Aiyengar and others v. T. N. V. Kailasa Thevar, AIR 1951 SC 189. It was held in that decision that the executing Court had a duty to give effect to the terms of the decree hut it had not power to go beyond its terms. Though the executing Court had the power to interpret the decree, it could not make a new decree for the parties under the guise of interpretation. Mr. Banerjee also referred to another decision of the Supreme Court in this context made in the case of (2) Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehmanand and others, AIR 1970 SC 1475. It was held in that decision that the Court executing a decree could not go behind the decree between the parties. It must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or in fact. Until the decree was set aside in an appropriate proceeding in appeal or revision, a decree, even if it be erroneous, was binding between the parties. For a similar proposition Mr. Banerjee referred to a decision of the Privy Council made in the case of (3) The Bank of Bihar Ltd. v. Sarangdhar Singh and another, AIR 1940 P.C. 8. Mr. Banerjee submitted that it was a fact that the said sum of Rs.3,000/- was lying in deposit in the trial court before the passing of the decree but through misconception of fact the court passed the decree to the effect that the kobala would be executed on depositing Rs.3,000/- by the plaintiff in the said suit. Mr. Banerjee submitted that the executing court was to take the decree according to its tenor and the executing Court could not entertain any objection that the decree was incorrect in law or in fact, as decided by the Supreme Court in the aforesaid decision made in the case of Vasudeb Dhanjibhai Modi (supra). Mr. Banerjee contended that in an appropriate case the decree could be corrected by the executing Court under sections 151 and 152 of the Civil Procedure Code and in appropriate cases the executing Court may even take note of change of law and its effect on the decree and held that the decree had become in executable but in the facts of the instant case Mr. Banerjee contended, a valid decree was passed by a competent Court and the Court might have lost sight of the fact that the said sum of Rs.3,000/- had been lying in deposit in the Court itself and on a misconception of fact it passed the said decree. But the executing Court in the guise of interpreting the decree could not change the said decree. Accordingly Mr. Banerjee contended that the plaintiff not having deposited the sum of Rs.3,000/- in terms of the decree the said execution proceeding was not maintainable and the kobala executed by the executing court in favour of the plaintiff in the said suit was without jurisdiction and as such illegal and void.

(3.) Mr. Mitter, learned Counsel appearing for the respondents, contended that the money had been lying in deposit in the said Court and as such it must be held that the condition of the decree has been complied with. He submitted that if a required amount lies in deposit in a court, then the Court is custodia legis of the said amount and it must be held that the plaintiff in that suit was not required to make any further deposit of the said sum of Rs.3,000/-. In this connection Mr. Mitter referred to a decision of the Supreme Court in (4) Duli Chand v. Mohan Chand, A.I.R. 1979 S.C. 1307. In that case the landlord made an application under Section 13 of the East Punjab Urban Rent Registration Act, 1946 before the Rent Controller, Bhiwani, for ejectment of the tenant. Under the said Act the tenant was under an obligation to deposit certain sums of money to avoid a decree for eviction. The tenant made an application before the said Rent Controller, inter alia, stating that he had deposited Rs. 109, 37 under the order of the Court of the Rent Controller-cum-Senior-Sub-Judge under the Punjab Relief of Indebtedness Act, 1934. The tenant along with the said application tendered a further sum towards interest and costs and overhead expenses. It was held by the Supreme Court that where the tenant had deposited the arrears of rent to the credit of the landlord in the very Court of the Rent Controller in which the landlord subsequently filed the petition for eviction, the tenant would be deemed to have complied with the requirements of the proviso even if the tenant had obtained the permission of the Rent Controller for making the deposit by referring to section 31 of the Punjab Relief of Indebtedness Act as the fact remained that the money was in custodia legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. The Supreme Court observed in the said case that the question might have been different if the deposit had not been made in the same Court. Mr. Mitter relying on the said decision contended that in the instant case the said sum of Rs.3,000/- was in Court and in terms of the decision of the Supreme Court it must be held that the plaintiff had complied with the terms of the decree passed in the said suit, namely, requirement of the plaintiff to deposit the sum of Rs.3,000/-. Mr. Mitter also contended that the executing Court has certainly the power to interpret the decree and it will be quite evident from the judgment passed by the Court of appeal below that the Court of appeal below had held that the executing Court in executing the said decree had in fact interpreted the decree in its true spirit. Mr. Mitter also referred to a Bench decision of this Court made in the case of (5) Sita Nath Saha v. Hari Rani Dasya, reported in 46 C.W.N. 509. B. K. Mukherjea, J. (as his Lordship then was) speaking for the Court held in the said decision that where in a partition decree there was a discrepancy between the chitta and the dowel on the one hand and the map on the other, the former should prevail and the map should be rectified. It was also held that when the executing Court was the same court which passed the decree, it could correct the decree so as to bring one portion into conformity with the other. Mr. Mitter submitted that in the instant case the executing court was the same court which passed the decree and as such the said executing court could also correct the decree so as to reconcile any ambiguity in the judgment itself.