Rajiv Sharma, J.�This petition is instituted against the order dated 21.6.2014 rendered by Civil Judge (Senior Division), Nurpur in Execution Petition No. 14 of 2007.
2. "Key facts" necessary for the adjudication of this petition are that petitioner had filed a Civil Suit bearing No. 134/2002 in the Court of Civil Judge (Junior Division)-1, Nurpur, District Kangra. The Civil Suit was decreed by the trial court on 28.10.2006. Operative portion of the judgment reads as under:
"In view of my findings on the issues above, the suit of the plaintiff succeeds and is hereby decreed. Accordingly, the plaintiff is held entitled to 1/3rd share in the insurance amount of Rs. 3,51,474/- assessed under Army Group Insurance Fund Scheme, whereas, defendants No. 1 and 2 are having 2/3rd share, therein with consequential relief of permanent injunction restraining the defendants not to withdraw 1/3rd share of the plaintiff in the insurance amount being payable to the legal heirs of late Shri Yashbir Singh. However, in the peculiar facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared accordingly and the file after its due completion be consigned to record room."
3. The petitioner was held entitled to 1/3rd share in the insurance amount of Rs. 3,51,474/- assessed under Army Group Insurance Fund Scheme. Judgment debtors No. 1 and 2 were held entitled to 2/3rd share with permanent injunction restraining them not to withdraw 1/3rd share of petitioner in the insurance amount. Petitioner has also moved an application under order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure. Judgment Debtor No. 3 was restrained from releasing 1/3rd share of the petitioner in the insurance amount of Rs. 3,51,474/- on 13.8.2002.
4. Petitioner filed an Execution Petition bearing No. 14/2007 for the execution of the judgment and decree dated 28.10.2006. The Execution Petition was dismissed by the Civil Judge (Senior Division) on 21.6.2014. Hence, the present petition.
5. Petitioner''s son died in Kargil in the year 2000. The family of the deceased was entitled to insurance amount under the Army Group Insurance Fund Scheme. A sum of Rs. 3,51,474/- was sanctioned. Petitioner was held entitled to 1/3rd share. According to the decree, she has been held entitled to 1/3rd amount out of Rs. 3,51,474.
6. The Civil Judge (Senior Division) has framed the issues in Execution Petition on 7.9.2009. In order to prove issue No. 3, Sh. Vipan Mahajan, Branch Manager, PNB Jassur has led his evidence by way of affidavit. According to him, the matter was got investigated after the receipt of judgment and decree. Account No. 3601 belonged to Ramzan Khan and Rashidan Bibi. No account existed in the name of judgment debtors No. 1 and 2. According to him, a sum of Rs. 3,52,474/- was sent to the bank vide order No. 728963 dated 29.7.2002. It was found to have been credited in account No. 3601 and information to this effect was given to the decree holder. However, in his cross-examination, he has deposed that the amount which was credited to account No. 3601 belonged to Ramzan Khan and Rashidan Bibi. The cheque was returned to the Army. He has also admitted that account No. 3601 in the Punjab National Bank at Jassur was not in the name of Dimple.
7. The decree holder has deposed that she was to be paid 1/3rd share in the amount. However, the judgment debtor No. 3 has not released her share. She is an old lady and senior citizen. She has also admitted that bank has informed that the bank account number was incorrectly given.
8. The letter sent to decree holder is Ex.PW-1/B. The copy of pass-book of account of Dimple is mark ''A''. The Executing Court has not executed the decree only on the pretext that this account number as per mark ''A'' was not given in the judgment.
9. According to Mr. Manoj Chauhan, learned counsel appearing on behalf of respondent No. 4, the Army has already released the amount in favour of the family members of the deceased. The account No. 3601 belonged to Ramzan Khan and Rashidan Bibi. The Executing Court should have ascertained the account from the judgment debtor No. 3 whereby the amount has been received by judgment debtors No. 1 and 2. The Executing Court could always mould the relief to ensure the execution of the judgment and decree dated 28.10.2006.
10. Their Lordships of the Hon''ble Supreme Court in
"4. At the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment: see Manakchand v. Manoharlal, 71 Ind. App. 65 : (AIR 1944 P.C. 46) . In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. The said defendants inter alia raised the plea that a personal decree could not be passed against them because they were not made parties to the suit filed in the Chief Court, Sind, and were not personally served therein. The learned Civil Judge, Agra, in accepting the plea made the following observation:
"The defendants 2 to 6 were not made parties in Suit No. 533 of 1947 and were not individually served in that case. I think, therefore, the plaintiff cannot get a personal decree against defendants 2 to 6."
After citing the relevant passage from the decision of the Madras High Court in
"That being the law there is no reason for construing the decree obtained by the plaintiff in Suit No. 533 of 47 as creating a larger liability against the defendant partners of the firm than to make the partnership property in their hands liable. I hold, therefore, that a personal decree against defendants 2 to 6 cannot be given but only as regards the property of the firm defendant No. 1 which may be found in their hands. The plaintiff is thus entitled to a decree for Rs. 12,140-1-0 with costs further and pendente lite interest at 3 p.c. p.a. against defendant No. 1 as may be found in the hands of defendants 2 to 6."
Then followed the decretal order. It is manifest from the pleadings and the judgment of the learned Civil Judge that when a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI, Rule 50, C.P.C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm in the hands of the partners."
11. Their Lordships of the Hon''ble Supreme Court in
"19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgment rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appear to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them."
12. Learned Single Judge of Patna High Court in
"6. So far as the first point is concerned, it is true that the Courts below have referred to a number of materials in order to interpret the House Controller''s judgment which takes the place of the decree in the execution case. Mr. Sinha has referred to the decision of a Division Bench of the Calcutta High Court in--
Even if it was not permissible for the executing Court in the present case to refer to other evidence in order to understand the judgment of the House Controller Mr. Sinha had himself conceded that the executing Court could certainly refer to the House Controller''s judgment and to the pleadings of the parties in order to find out the premises from which the appellant was ordered to be evicted. There are also many decisions of this Court and other Courts to this effect.
I may refer only to some of those cases. In Baij Nath Sahay v. Gajadhar Prasad, 58 Ind Cas 276 : (AIR 1920 Pat 118) (B), it was held by a Division Bench of this Court that, in construing a decree, the executing Court is competent to take the assistance of the pleadings and the judgment. This was followed by another Division Bench of this Court in -
In--
7. The House Controller''s order which is under execution has been marked as Ex. I-8. It appears from this order that the respondent filed his application for eviction of Ghugla Sah and others and the appellant from two rooms of holding No. 78 in ward No. IV of Kathihar Municipality. The rental of each of these, as mentioned in the order itself, was Rs. 35/- per month. Admittedly, the rental of Rs. 35 is payable by the appellant to the respondent not for one room but for the entire block in his possession.
It is perhaps from this point of view that the House Controller has stated in his order (Ex. I-8) that the landlord requires the "houses" occupied by the two tenants for opening shops for his two sons. The operative part of his order is as follows:
"I hereby direct that these houses (referring to the block in occupation of Ghugli Sah and others and to the block in occupation of the appellant) in question would be vacated and made available to the landlord within three months of the date of this order."
This clearly shows that he directed the appellant''s eviction not only from one room but from the entire block in his occupation as a tenant of the respondent."
13. The Division Bench of Kerala High Court in
"4. The next objection relates to the amount allowed to be recovered. The suit was one for recovery of leased properties with rent past and future. The decree does not specify the quantum of rent allowed after the date of suit. -The decree-holder produced a copy of the plaint and the judgment in the case. The judgment states as follows:
"Future pattom also allowed for three years or till recovery of property, at the rate claimed in the plaint."
5. THIS is a case in which the decree has to be construed with the aid of the judgment and the pleadings. It is seen from the plaint that the plaintiff claimed rent from the date of suit till date of recovery of possession at the rate of Rs. 2,500/- per annum. When the trial court held that future pattom was allowed at the rate claimed in the plaint it is clear that what was allowed was rent from the date of suit at the rate of Rs. 2,500/- pre annum. It is however seen from the execution petition that the decree-holder claimed rent at the rate of Rs. 5,000/- per annum from 10-4-1950. THIS claim is quite unsupportable by the terms of the decree and learned counsel for the respondent did not attempt to support the same. We therefore bold that the decree-holder is entitled to claim rent from the date of suit at the rate of Its. 2,500/- per annum only. Another question that arises in this connection is the '' period from which future rent can be allowed. The nature of the transaction which has given rise to tins decree has to be considered in deciding this question, The defendant-mortgaged the properties with possession to the plaintiff who leased the same to the defendant at the same time. The decree was obtained on the basis of that lease. The defendant'' filed a later suit against the plaintiff as O. S. No. 152 of 1951 of the District Court of Kottayam for redemption of the mortgage. He deposited the mortgage money also along with the plaint. That suit was decreed terminating the mortgage as on the date of the plaint, viz., 4-8-1951. Copies of the judgment and decree in O.S. No. 152 were produced in this court and we have allowed the application for admitting the same in evidence. The question is whether the decree-holder is entitled to recover rent after 4-81951 when his rights as mortgagee lessor terminated. We feel no doubt that the later decree must be given effect to. The later decree is between the same parties and the earlier decree is inconsistent with the terms of the later one. In such a case the earlier decree becomes unenforceable and this position has been laid down at least in two reported decisions of this court viz., Arumukom Nadar v. Saidukannu Pakeer Pillai 1950 Ker LT 32 (B) and Padmanabhan Krishnan v. Mathevan Pillai Kesava 1952 Ker LT 319 : (AIR 1952 Trav C 294) (C). The relation of lessor and lessee came to an end when the decree-holder ceased to be the mortgagee in possession and the judgment-debtor cannot be made liable for rent after such date. The decree-holder is not'' therefore entitled to claim rent after 4-8-1951."
14. Learned Single Judge of this Court in
"7. A close scrutiny of Exhibit DEH and Exhibit DH-2 and the pleadings of the parties clearly shows that the decree-holder (plaintiff) who was the predecessor-in-interest of the present respondents was to become the full fledged owner of the property on payment of Rs. 5130-78 paise and that the judgment debtor (defendant) was to lose all interests in this property. The words to the effect that the plaintiff shall become the "absolute owner" of the property clearly mean that the plaintiff was to get the possession and ownership of the property and that the defendant (judgment-debtor) was to lose all rights in this property. If this is so, then definitely the plaintiff could get the possession of the property for which the consideration of Rs. 5130-78 paise was to be paid by him. The statement of the judgment-debtor Brij Lai, dated 22-11-1968, is also very significant where he admits that he was to receive Rs. 5130-78 paise within two months and thereafter Waziru Ram decree-holder (plaintiff) was to get the shops. The present decree, dated 31-&-66 has to be enforced and interpreted m a manner, that the litigation between the parties is shortened and for this purpose the real intention of the parties can be gathered from the various facts and circumstances of the case which led to the passing of this decree as has been laid down in Bhavan Vaja and others case (supra)."
15. Accordingly, the petition is allowed. Order dated 21.6.2014 is set aside. Judgment debtor No. 3-bank is directed to pay the share of the petitioner if the entire amount of Army Group Insurance Fund has been deposited in the account of judgment debtors No. 1 and 2, and in case the amount has been sent back to respondent No. 4 by judgment debtor No. 3-Bank in that eventuality, respondent No. 4 shall release the amount to the decree holder within a period of six weeks from today. Pending application(s), if any, also stands disposed of. No costs.
