JAI NARAIN Vs. GANESHI LAL
LAWS(P&H)-1950-12-16
HIGH COURT OF PUNJAB AND HARYANA
Decided on December 04,1950

JAI NARAIN Appellant
VERSUS
GANESHI LAL Respondents

JUDGEMENT

G.L. Chopra, J. - (1.) THE point of law involved in this revision is whether an objection under S. 30, Patiala Relief of Indebtedness Act (V (5) of 1999) can be taken during the execution of a decree which was passed in a suit instituted after the commencement of the Act. A money suit brought by Ganeshi Lal respondent on 2 -2 -2002 was decreed to the extent of Rs. 225/ - against the petitioner on 16 -12 -2002. On execution proceedings being taken out the judgment -debtor took objection that the principal amount advanced was only Rs. 50/ - and that the rest of the decretal amount consisted of interest. The objection was based on the provisions of S. 30, Cl. (1), Patiala Relief of Indebtedness Act 1999 (Act V (5) of 1999) and it was prayed that the decree -holder be required to produce his accounts from which the contention could be substantiated. The decree -holder resisted the application on the ground that since the objection had not been taken during the trial of the suit it could not be raised in the execution proceedings because the executing Court could not go behind the decree. The Courts below have found in favour of the decree -holder and dismissed the objections. I cannot fail to remark that the executing Court unnecessarily gave ten adjournments for the hearing of the application and took more than six months to decide the only question. The District Judge is of the opinion that the suit having been filed after the promulgation of the Act the judgment -debtor could have availed of the relief given by S. 30, if he so desired, during the trial and no objection having been then taken debars him from raising it before the executing Court.
(2.) IT is contended by Mr. Ram Niwas, the learned counsel for the petitioner, that the order of the District Judge is against the provisions of the Act which enjoins on the Court hearing the suit and also on the Court executing the decree to see that the sum claimed was not larger than twice the amount actually advanced. The learned counsel for the respondent refutes the contention by arguing that the executing Court cannot go behind the decree and that an objection that could have been raised by a party during the suit and was not so raised must be deemed to have been decided against him. It is correct that under S. 11, C.P.C. any matter which might and ought to have been made ground of defence in the suit would be deemed to have been a matter directly and substantially in issue. By the application of the principles laid down in this section read with explanation (4) it can be argued that the defendant who could have taken up the plea of Damdupat during the trial but failed to do so should be considered to have waived it and the Court can be taken to have by implication decided the objection against him. But here we have got a special Legislation which provides that the objection of Damdupat is not only to be entertained by the Court passing a decree but also by the Court executing a decree passed in a suit which was instituted after the enforcement of the Act. The very language of the section makes it clear that in suits brought after the commencement of the Act not only is a Court debarred from passing a decree but it is also debarred from executing a decree if it is found to offend against the rule of Damdupat. The argument that the objection could only be raised in the suit and not raising it then amounted to a decision by implication against the defendant would render a part of the section redundant. The section reads as follows: In any suit brought after the commencement of this Act in respect of a debt as defined in S. 7, as advanced before the commencement of this Act no Court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of the sum found by the Court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under Cl. (3) of sub -s. (2) of S. 5 of this Act. A simple interpretation of the words used in the section shows that even if no objection was taken during the trial the objection that the decree -holder was not entitled to realise more than twice the amount of the money advanced by him could still be raised in execution proceedings and the executing Court would be debarred from executing the decree if in its opinion the decree offends against the rule laid down in the section. In view of this special provision of law. The principles law down in S. 11 read with explanation (4) would have no application to this case, and the special enactment must have precedence over the principles of implied decision. In coming to this decision I have not been unmindful of the general principles of law and procedure, that weighed with the District Judge, that an executing Court is to execute a decree as it is and is not to go behind it or to question its validity. But the Act enjoins upon the executing Court to refuse to execute a decree for the sum that it finds to be in excess of double the amount actually advanced. However unreasonable it may appear to be the law must have its course, and the Courts are only to interpret it in its plain meaning and apply it as it stands. In the view that I take I am supported by a judgment of the Lahore High Court in 'Firm Jog Dhian Jiwan Das v. Ram Kaur, : AIR 1945 Lah 33 in which on a similar objection being taken by a judgment -debtor of a decree passed in a suit instituted after the enforcement of the Punjab Relief of Indebtedness Act (VII (7) of 1934) Abdul Rehman J. observed that "the plain meaning of this section shows that the mere omission to raise the objection during the trial stage would not debar a person from raising that objection after the decree had been passed against him". S. 30, Punjab Act is just the same as S. 30 of the Act under consideration (Act V (5) of 1999). I would, consequently, hold that the judgment -debtor could take up the objection in the executing Court although he bad failed to avail of it during the trial of the suit. The revision is, therefore, accepted and the order of the trial Court as well as that of the District Judge set aside. The case is remanded to the Executing Court for decision of the application on merits in accordance with law. The parties have been directed through their Counsel to appear in the Court of Sub -Judge II Class Narnaul on 18th Dec, 1950. No order as to costs.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.