BANK OF BARODA Vs. SHARMA INDUSTRIES
LAWS(HPH)-1991-12-2
HIGH COURT OF HIMACHAL PRADESH
Decided on December 23,1991

BANK OF BARODA Appellant
VERSUS
SHARMA INDUSTRIES Respondents

JUDGEMENT

D.P.SOOD, J. - (1.) BY this application under Section 151, Civil Procedure Code, Judgment debtor No. 3, Ram Murti, has prayed for the release of the amount of Rs. 57,307 which was ordered to be deposited in fixed deposit with the decree holder's bank.
(2.) PURSUANT to a joint and several decree passed against the judgment debtors in Bank of Baroda v. Sharma Industries, In re (C. S. No. 68 of 1984, dated 20th August, 1984), the decree holder filed the instant execution petition in the sum of Rs. 1,34,905.16 on March 28, 1986. During the pendency of the aforesaid proceedings, the decree holder also filed an application registered as OMP No. 25 of 1987 on February 21, 1987, which remained pending disposal till March 20, 1990 and the same was disposed of as withdrawn as per the statement of learned counsel for the decree holder as not being pressed at the present stage of the proceedings. In between this period from February 21, 1987, till March 20, 1990, both the parties filed various applications out of which OMPs No. 139 of 1988 and 232 of 1988 with reference to OMP No. 25 of 1987 are material for the decision of the instant application. By the first application OMP NO. 25 of 1987, the decree holder sought the arrest of judgment debtors Nos. 2 and 3, namely, Ram Sarup (principal debtor), and Ram Murti (guarantor). On May 26, 1987, this court passed the following order in OMP No. 25 of 1987 : "It is stated by learned counsel for the judgment debtors that the amount of compensation out of land acquisition proceedings has not been received so far. He also prays for more time to file a reply on behalf of judgment debtor No. 3. This be done before the next date of hearing and the case be listed before the court on June 3, 1987." Subsequently, judgment debtor No. 2, Ram Sarup, deposited an amount of Rs. 10,000 on September 21, 1987, towards the liquidation of the decretal amount as is apparent from the order passed on September 22, 1987. On that date, he had clarified to this court that his case for compensation has not yet been finalised and he also owned another plot at Parwanoo and he was trying to sell the same for liquidating the decretal amount. By the same order judgment debtor No. 3 was directed not to receive any compensation from the court of the district judge, Solan, regarding land acquisition proceedings till further orders of this court. It would be pertinent to note that, till then reply had not been filed by judgment debtor No. 3 to OMP No. 25 of 1987. On May 16, 1988, Shri Dharamchand, appearing on behalf of the applicant, Ram Murti, judgment debtor No. 3 in OMP NO. 139 of 1988, had made a statement before this court as stated in that application that a sum of Rs. 57,322 has become payable to judgment debtor No. 3 towards his share in the amount of compensation in the court of the learned Additional District judge, Solan, whereupon the said sum was sent for from that court to be remitted in the name of the Registrar of the High Court. Subsequently, on July 6, 1988, some understanding appears to have been arrived at between the judgment debtors and the decree holder and this court passed the following order in OMP No. 139 of 1988 as under : "A sum of Rs. 57,307 has been received in the registry of this court. In view of the orders made in OMP No. 232 of 1988 and further due to an understanding between the decree holder and the judgment debtor that this amount would not be appropriated towards the decretal amount pending payment of the decretal amount by the principal debtor judgment debtor No. 2, it is ordered that the amount received in the registry be deposited with the decree holder bank in a fixed deposit for a period of 37 months. The case be listed after two months."
(3.) AT this stage, learned counsel for judgment debtor No. 3 has stated that he had not made any such statement to this court regarding any such understanding having been arrived at between the parties as incorporated in this order. However, he admits that this order was dictated in his presence. Thus this order has to be taken as such in view of the presumption of truth attached to it under the law. On the same day, another order in OMP N. 232 of 1988 was passed which is given below : "Judgment debtor No. 2, applicant, is the principal debtor. He is likely to receive some compensation from the H. P. Housing Board in lieu of some property belonging to him which has been acquired. An undertaking has already been given by judgment debtor No. 2 that he would not receive the said amount of compensation and would in the first instance pay the decretal amount. He has, therefore, prayed for postponement of execution proceedings. Shri Dharam Chand, learned counsel for the said judgment debtor, today prays that this case be adjourned for two months. This arrangement has been acceded to by the decree holder bank. Let this case be, therefore, listed before the court after two months." ;


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