SHYAM NARAIN MISHRA Vs. D S BISHT AND SONS
HIGH COURT OF UTTARAKHAND
SHYAM NARAIN MISHRA
D S Bisht And Sons
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PRAFULLA C.PANT, J. -
(1.) HEARD .
(2.) THIS revision is directed against order dated 29.05.2001, passed by the executing court (Civil Judge Senior Division/VI Fast Track
Nainital) in Execution Case No. 78 of 1978.
(3.) BRIEF facts of the case are that the Civil Suit No. 27 of 1953 was filed by the plaintiffs (decree holders) for accounting, and recovery
against the defendants (judgment debtors). A preliminary decree
was passed in the said suit for recovery of an amount of ' 49,810/ - on
24.09.1957. Final decree was passed on 17.09.1974 for an amount of ' 2,71,050. After the decree passed by the trial court Execution Application No. 78 of 1978 was filed by the plaintiffs before the trial
court. Meanwhile, the defendants filed First Appeal No. 228 of 1975
before Allahabad High Court. A cross appeal was filed by the plaintiffs.
Both appeals were decided by Allahabad High Court vide its judgment and
decree date 13.09.1984, and it was directed that the defendants shall pay
' 3,89,243.81 along with 6 % interest per annum thereon. After the
decree was passed by the Allahabad High Court, an amendment was sought by
the decree holders in the Execution
Application No. 78 of 1978 for recovery of enhanced sum of
decretal amount in the light of the appellate courts order. Said
amendment appears to have been allowed on 12.12.1986. Thereafter,
property of the judgment debtors was attached and court issued
declaration for auction for sale of the property, for recovery of an
amount of Rs. 3,72,473.41 on 23.11.1998. At this stage of the execution,
judgment debtors deposited before the executing court said sum of
Rs.3,72,473.41, apv form Rs. 3,000/ - cost of the execution. However,
the application 136C was moved by the decree holders on 06.08.1999 for
recovery of remaining interest by seeking further amendment in the
execution application against which the judgment debtors filed objection
154C. The trial court after hearing the parties rejected the application 136C and struck of the execution in full satisfaction
of the decree.
Learned counsel for the revisionists (decree holders) argued that the executing court has erred in law in strucking off the Execution
Application in full satisfaction of the decree. On the other hand learned
counsel for the respondents (judgment debtors) contended that since the
amount for which the execution was moved had already been paid by the
judgment debtors, as such the impugned order suffers from no illegality.;
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