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Rajparis Civil Constructions Ltd., Chennai v/s Mohamed Ibrahim & Others

    A. No. 2856 of 2021 in C.S. No. 478 of 2007

    Decided On, 28 August 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE N. SESHASAYEE

    For the Applicant: S. Parthasarathy, Senior Counsel. For the Respondents: ----------



Judgment Text

(Prayer: Application filed to set aside the Order, dated 3.8.20201 issued on 5.8.20201 on the learned Master in Application No.1245/2021 in C.S. No.478 of 2007.)

1. The Plaintiff has instituted the Suit for recovery of sum of Rs.4,36,67,982 with Interest at 18% p.a. on the principal sum of Rs.3,27,62,500 and on 25.8.2014 the said suit came to be decreed ex parte.

2. Be that as it may, during the pendency of the Suit, the Plaintiff has initiated Garnishee proceedings with a direction to the National Highways Authority, which was in possession of the Compensation amount payable to the Defendants consequent to an acquisition of their properties. A sum of Rs.24,49,11,983 came to be deposited by the NHAI to credit of this case (which is puzzling since it represents many folds than the Suit-claim).

3. Now, the Plaintiff has taken out an Application before the Master for to enable him realise the decretal sum of Rs.12,39,45,026.50 out of the amounts in Court-deposit. This was dismissed by the Master on the ground that the Plaintiff/Decree-holder ought to file only an Application for executing a Decree.

4. Heard Thiru S. Parthasarathy, Senior Counsel, for the Applicant. He submitted that not only did the Defendants choose not to contest the Suit and opt to stay ex parte, even in the Pay-out Application they remained ex parte even though they were served with the Notices. He further submitted that the Decree passed in 2014 has now become final. Since the Defendants have not chosen to contest the said Pay-out Application there may not be any procedural embargo in collecting the dues to which the Plaintiff is entitled to, argued the Counsel.

5. This Court finds considerable merit in the submissions of the learned Counsel. Court's role does not stop with the Decree it passes, but continues till the fruits of the Decree are physically realised for the Decree-holder. The point is, should in every case the Decree-holder should prefer an Execution Petition?

6. If the cue that Section 47, C.P.C. provides is taken as a clue to understand what needs to follow once a Decree is passed, it is possible to derive from it that a Decree can either be satsified, or discharged, or executed. Satisfaction of a Decree is what the Defendant/Judgment-debtor may do on own volition in submission to a Decree. Therefore, Execution of a Decree becomes necessary only when a Decree is neither satisfied, nor discharged. If the Plaintiff were to realise the Decretal amount then the Decree must be satisified voluntarily by the Defendants and where they default, it has to be realised out of their assets.

7. Here is a situation, where the Court is in possession of the funds of the Defendants, the latter's asset, which is adequate to satisfy the Decretal claim. Should the Decree-holder be compelled to execute the Decree? This Court considers that it need not always be so. There are two reasons:

Firstly, under Order 21, Rule 1, C.P.C., one of the modes provided for payment of the money under a Decree is to deposit the Decretal sum in the Court, and issue Notice thereof to the Decree-holder. And where it is paid without involving the Court, the mode of payment must be in writing, which obviously is intended to secure the interest of the Judgment-debtor. It must be read with Order in C.S. No.478 of 2007 21, Rule 2, C.P.C. And, these provisions deal with pre-execution stage of a Money Decree. Therefore, it needs to be underscored that the Code does encourage payment of Decree-debt other than by execution of a Decree;

Secondly, if the Court comes to be in possession of funds of the Defendants pursuant to a Garnishee proceedings, the funds are in custodia legis, and the Court holds it more as a Trustee and is required to manage the funds for the benefit of parties. The Court is, therefore, may have to discharge such obligation that it has created on the property in custodia legis (read as funds of the Defendants). In other words, the Decree once passed creates a crystalized obligation on the funds of the Defendants which the Court has in its custody and control. Now, is it not reasonable and less cumbersome a procedure if the Court pays out the Decree-holder from and out of the funds of the Defendants, which is in its custody in the very case in which it has passed the Decree? The only difference between the two Statements made hereinabove is that, while Order 21, Rule 1 situation contemplates a voluntary submission to the Decree, amount deposited by a Garnishee may not be considered so. It may, therefore, be necessary to issue Notice to the Defendants, if payments were to be made out of the funds deposited by the Garnishee, since fairness of Court's procedure demands that the Defendants/Judgment-debtors are informed how the amounts of the Defendants, but in the deposit of the Court are handled by the Court. Once this rule of fairness is complied, it makes little difference whether the Defendants pay the Decree-debt on his/her own volition, or the Court pays. The ultimate object is to ensure that the Decree-holder is not denied the benefits of the Decree.

8. An adage, born of the Decree-holder's anguish, and the one which is longing for being recognised as a Legal Maxim is: “The agony of a Decree-holder commences the moment he obtains a Decree”. A litigant must be presumed to be in misery. Hence, his cause of action is not suspected when he accesses the legal system

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for remedy. It is, therefore, necessary that the Court never permits itself to be guided by a process that makes the life of a litigant more miserable. Viewed thus, an Execution is but a procedural option, and it must be and can be dispensed with in appropriate cases. 9. In fine, this Court allows this Application and directs the Registry to issue a Cheque for a sum of Rs.12,39,45,026.50 to the Plaintiff. Registry is further required to intimate the Defendants about the balance amount available with it and is directed to pay the same to the Defendants after satisfying itself about their identity.
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