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Central Bank of India v/s Maghar Singh

    Civil Revision No. 5168 of 1997

    Decided On, 04 August 2000

    At, High Court of Punjab and Haryana


    For the Appellant: Raj Kumar Aggarwal, Advocate. For the Respondent: Ajay Jain, Advocate.

Judgment Text

This is a civil revision and has been directed against the order dated 18.7.1997 passed by the Additional District Judge, Sirsa, who reversed the order dated 20.2.1966 passed by the Civil Judge (Senior Division), Sirsa.2. Some facts can be noticed in the following manner:Central Bank of India (hereinafter called "the Bank") filed the proceedings u/s 8 of the Haryana Agriculture Credit Operations and Miscellaneous Provisions (Banks) Act, 1973 against Shri Maghar Singh and Jagdev Singh and claimed a sum of Rs. 93,530.92 as principal and interest calculated upto 31.12.1986 and its future interest at the rate of 14.5% per annum with effect from 1.1.1987. During the pendency of the proceedings, a compromise took place and the statement of Shri Maghar Singh was recorded on 21.8.1987 which may be read as under:Stated that 1 and my some Jagdev Singh had taken loan from C.B.I., Sirsa for tractor and we had also mortgaged our land in favour of the Bank. I could not pay the loan instalments in time and now 1 will pay back the whole amount of the Bank with interest in six instalments. Six monthly instalments may be fixed. First instalment will be payable by 31 December. If J fail to pay the first instalment, then the Bank will have the right to recover the whole amount due by way of auction of the mortgaged land. The second instalment will be six monthly similarly. The suit may be decreed." On the basis of the statement made by Shri Maghar Singh, the S.D.O. (Civil), Sirsa passed the order dated 21.8.1987, which reads as under:The applicant filed an application u/s 8 of the Haryana Agri. Credit Operation and Misc. Provisions (Banks) Act, 1973, against the Respondents and prayed that the Respondents had taken loan from the Bank for purchase of a tractor but they did not pay the loan instalment, therefore, an amount of Rs. 93,530.92 is outstanding against them. The recovery of this amount may kindly be got effected by way of attached of their mortgaged land.Notices were issued to the Respondents, they appeared in the Court and admitted the claim of the Bank and stated that they will pay the outstanding amount of the Bank in six monthly instalments. The counsel for the Bank also admitted the contention of the Respondents. I have gone through the file of this case and I have also read the statement of the counsel for the Bank. As per statement of the Respondent and statement of counsel for the Bank I decree in this application in favour of the Bank. The Respondents will pay the outstanding amount of Rs. 93,530.92 in six monthly instalment. If the Respondents fail to pay the instalments, then the Bank shall have the right to effect the recovery of the outstanding amount in lumpsum by way of attachment of the mortgaged land of the Respondents.Thereafter, the Petitioner-Bank filed an execution application under Order 21 Rule 11 CPC and during the pendency of this application, again the statement of Shri Maghar Singh was recorded as the Bank was asking for the interest when this interest was not allowed by the S.D.O. (Civil) in the original order. Shri Maghar Singh, Respondent made the following statement;Stated that an amount of Rs. 166051/- is due from us to the decree-holder-Bank in which the interest upto 31.1.1993 is included. We are liable to pay the principal amount and interest from 1.2.1993, at the rate of 15-1/2 per cent per annum and 2% penal interest. We could not pay the instalments in time due to weak crop. We had deposited Rs. 9000/- on 10.5.1993 and we are ready to pay the balance amount in six half yearly instalment. We will deposit the first instalment of Rs. 25,000/- up to 30.12.1993 and similarly we will continue to deposit the remaining instalments. We will pay the last instalment alongwith the interest and costs etc. if we failed to pay any one instalment, the Bank will have the right to recover the whole amount due by way of attachment of the mortgaged land.It appears that Maghar Singh was not inclined to pay interest perhaps on the advice of some legal counsel. On the contrary, the Bank was interested to charge future interest as per the original statement of Maghar Singh and his supplementary statement quoted above.Finally, vide order dated 24.3.1995, the S.D.O. (Civil) came to the conclusion that the order passed by him earlier, did not make a mention with regard to the awarding of interest in favour of the Bank, therefore, he dismissed the execution application of the Bank by passing the following order:I have heard learned Counsel of both the parties and also perused the documents placed on record. 1 have also perused the copy of the decree dated 21.8.1987. The decree is passed in favour of the decree-holder just for Rs. 93,530.92 and there is no mention of interest in the decree meaning thereby, that at the time of passing decree the judgment-debtor was ordered to pay the decretal amount in equal instalments in six months. Had there been any provision made for the payment of interest, the same must have been mentioned. Thus, it is apparent that there is no order in respect of interest. Only decree in the sum of Rs. 93,530.92 is passed in favour of the decree-holder. There is no clerical mistake. I have gone through the ruling cited by the learned Counsel for the judgment-debtor. In the present circumstances, no order in respect of payment of interest can be passed. Therefore, the objections of the judgment-debtor are allowed and order that decree-holder can recover the amount to the extent of decretal amount only and whatever amount he has deposited, shall be adjusted towards it. Warrant of attachment be issued against the judgment-debtor. To come up for warrant of attachment on 5.5.1995.Realising the difficulty the Bank filed an application u/s 151 read with Section 152 CPC for the correction of the original order of the S.C.O. and this application was allowed without notice to Maghar Singh or his son vide order dated 10.7.1995. Maghar Singh then filed a civil suit in the Civil Court stating therein that the order dated 10.7.1995 has been passed on his back and, therefore, it does not bind his interest and does not give the right to the Bank to realise the interest. Along with the suit he also filed an application under Order 39 Rule 1 and 2 CPC which was dismissed by the trial Court. The Plaintiff, Shri Maghar Singh, filed an appeal before the first appellate Court who allowed the appeal of Maghar Singh and set aside the order and stated that during the pendency of the suit the Bank shall not realise the interest from the Respondent and in this manner, this time the Bank is the aggrieved party.3. I have heard Shri R.K. Aggarwal, Advocate, appearing on behalf of the Petitioner and Shri Ajay Jain, Advocate, appearing on behalf of the Respondent and with their assistance have gone through the record of the case.4. The submission raised by the learned Counsel for the Petitioner is that the remedy of the Plaintiff-Respondent lies somewhere else. The suit of the Plaintiff was not legally maintainable. He vehemently submitted that the main order vide which the claim of the Bank was decreed, has already been amended by the subsequent order dated 10.7.1995. Though this order has been passed ex parte but it is not a nullity nor is it without jurisdiction. It was also submitted by the learned Counsel for the Petitioner that in the execution proceedings, Shri Maghar Singh has made a statement in which he has admitted that he was also liable to pay the interest and in these circumstances, it is not open for him to say that he is not liable to pay the interest.5. In support of his contention, the learned Counsel for the Petitioner relied upon AIR 1996 All 384 Debi Baksh v. Shambhu Dial and another. In this cited case the Hon'ble Judge of the Allahabad High Court was pleased to say as under:"It is unfair to amend the decree without giving the party, against whom it is to operate, an opportunity to show cause against it; and if the amendment is wrong, it is open to the judgment-debtor to apply to the original Court for a review of its order."6. On the contrary, the learned Counsel appearing on behalf of the Respondent submits that it is yet to be adjudicated whether the order dated 10.7.1995 gives an extensive right to the Bank to realise the amount by way of interest or not. Order dated 10.7.1995, has been passed on the back of Shri Maghar Singh, therefore, he had the right to challenge the said order either in the Court of competent jurisdiction by filing a civil suit or he could apply to the said Court for the amendment of the order.7. The learned Counsel for the Respondent also cited a judgment reported as 1986 PLJ 161 State of Haryana v. Vinod Kumar and others and he drew my attention to paras No. 5, 6, 7 and 8 of the said judgment. The ratio decided of the judgment is that if an order has been passed by a Tribunal of special jurisdiction in violation of the provisions of statute or principles of natural justice, such an order is a nullity and it is open to challenge in Civil Court even if statute expressly bars the jurisdiction of Civil Court to entertain a suit to challenge the validity or legality of the order passed by such a Tribunal. Remedy of the third person who is not a party to the order is that he must file a civil suit. The learned Counsel for the Petitioner, however, tried to distinguish this authority by stating that this judgment relied upon by the counsel for the Respondent forces a right to the third person and not a judgment-debtor.8. After considering the rival contentions of the parties, this Court is of the opinion that at present the High Court is disposing of an application under Order 39 Rules 1 and 2 and not the main suit itself. In order to grant the injunction the Civil Court has to see whether the Plaintiff has a prima facie case to succeed; whether balance of convenience lies in his favour or whether an irreparable injury would be caused to him or not if a debatable question has been created or made out from the pleadings of the parties it will be considered as a triable issue which can only be disposed of by leading evidence with regard to the contentions raised by the parties. Merits at the initial stage and specially while deciding the application under Order 39 Rules 1 and 2 CPC are not required to be adju

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dicated. This is the intention of the law. It is yet to be adjudicated whether the order dated 10.7.1995 is a valid order or not. It is admitted at the bar by the learned Counsel for the Petitioner that before passing this order notice of the application under Sections 151/152 of the CPC was never given to the Plaintiff-Respondent. S.D.O., Sirsa, was holding the Court under the special jurisdiction of the aforesaid Act.9. In this view of the matter, when a debatable question to be adjudicated on merits has arisen, it was not proper on the part of the trial Court to dismiss the application under Order 39 Rules 1 and 2 CPC. This aspect of the case has been rightly appreciated by the first appellate Court and the discretion exercised validly and in a proper manner should not be lightly disturbed by the High Court.10. In this view of the matter. I do not see any merit in this revision and the same is hereby dismissed with no order as to costs.11. Before parting with this order, I may state that nothing stated herein shall amount to an expression of my opinion on the merits of the case. The trial Court is directed to expedite the case.