Find a Lawyer

Civil Appeal No. 74 of 1977, decided on 18th March, 1978.

-- S. 50-Execution of decree against legal heirs--Contention that legal heirs of deceased had to incur huge payments for debts of deceased father, so also funeral expenses, etc. and still a huge amount of debt due is being claimed as such cannot be burdened as against property left by deceased-Contention, in circumstances of case, held. not tenable-Whatever property left by deceased seems to have gone into hands of legal heirs in full enjoyment.

--Ss. 47 & 50-Executing Court, scope of--Executing Court not to go beyond terms of decree and to fix amount of interest when no interest was given at time of decision-Decree not providing interest, held, deemed to have been refused unless shown otherwise.

-- O. XX, r. 11(2)--Decretal amount-Payment in instalments Decree-holder not agreeable to payment of decretal amount in instalments-Court, held, not competent to order payment by instalments. after passing decree for payment of money in lump sum, without consent of decree-holder in circumstances.

Agha Ashiq Hussain for Appellants.

Abdul Khaliq Ansari and M. Y. Surakhvi for Respondents.

'This appeal has arisen out of the execution proceedings challenging the order dated 16th October, 1977 of the District Judge, Mirpur.

It was in proceedings under the provisions of Co-operative Societies Act that appointment of a. Liquidator in the matter of the District Trans port Co-operative Society Limited, Mirpur the Liquidator found Mst. Khurshid Begum entitled to receive an amount of Rs. 4 000 as her share in the said Society from Syed Badi-uz-Zaman Shah who was also her husband. The award of the Liquidator was accordingly approved thy the Registrar Co-operative Societies and a certificate was issued to Mst. Khurshid Begum thereof which for want of satisfaction has become subject of execution by the civil Court treating the same as a decree of the civil Court for the purpose. Thus Mst. Khurshid Begum assumed the role of decree-holder whereas Syed Badi-uz-Zaman Shah was the judgment debtor.

Syed Badi-uz-Zamatr Shah died before the amount awarded to Mst. Khurshid Begum could be recovered from him. So Mst. Khurshid Begum brought an application for the execution of the certificate in the High Court which later was transferred to the District Judge, for disposal following an amendment in law determining the jurisdiction of the civil Courts.

The application was made against the sons of the deceased who allegedly came in possession of the property left by the deceased. Mst. Khurshid Begum is also a widow of the deceased, It seems that no pro perty left by Syed Badi-uz-Zaman Shah came to the hand) of this widow or Mst. Surraya Begum, another widow of the deceased. And so the sons in the alleged possession of the property in suit were proceeded against by the respondent. Mst. Surraya was also a party in the proceed ings but later on she was given up as she had no property in her posses sion left by the deceased.

The appellants resisted the claim of the decree-holder. A large number of issues were framed by the executing Court out of which the relevant ones for determination by this Court are as under -

(1) Are the non-applicants, as heirs of deceased Syed Badi-uz Zaman Shah, liable for payment of the award money irrespective of any property having devolved upon them O. P. P.

(2) 1f issue No. 4 is found in the negative, what are the properties left by Badi-uz-Zaman Shah O. P. P.

(6) Has the deceased left a debt of more than a lakh of rupees and, if so, what is its effect on the application

(7) ... ... ... ...

(8) is the applicant entitled to interest O. P. P.

(9) ... ... ... ...

(10) Relief.

The remaining of the issues were not passed by the learned counsel for the appellants. Moreover; Mst. Surraya Begum, another widow of the deceased being a party to the proceedings no longer remains as such. So any issue struck in relation to her is also to be taken on,. of the consideration.

The learned counsel . for the parties were heard and perusal of the record was made. By the execution application a number of vehicles was given to show that they were left by Syed Badi-uz-Zaman Shah and so satisfaction of the amount claimed by respondent is to be made out of them. But those vehicles are no longer the subject for satisfaction of the decree as they were sold by the appellants. They were sold in shape of scrapes or still exist in a new Bus Service run by the appellants and that is a question not necessary in the circumstances to be answered here. ,

The learned counsel for the appellants has addressed the Court at length and to avoid the instant payment contended that as the appellants had to incur huge payments for the debts of their deceased lather and so also funeral expenses, etc. and still a huge amount of debt due is being claimed, they cannot be burdened as against the property left by the deceased. This contention of the learned counsel, in circumstances of the case, is not tenable. Whatever property was left by the deceased it seems to have gone into the hands of the appellants in their full enjoyment.

Here in this case, a plot having a bus-stand on it was attached by the executing Court holding that it was the property left by Syed Badi-uz Zaman Shah and there is no doubt in it. From the cross-examination of Syed Ghulam Abbas the appellant we find that this property is of an abundant value which can meet any claim made far indicated by the appellants. Mst. Khurshid Begum is also a creditor and thus the pro perty in dispute can be held to have a lien on it of the amount of decree standing in favour of Mst. Khurshid Begum against Syed Badi-uz-Zaman Shah. This property, as already indicated, is worth lacs of rupees and as such the satisfaction of the certificate issued to the respondent by the Registrar Cu-operative Societies can be made against it. Thus the order of the learned District Judge, in attaching the property in dispute for the satisfaction of the decree is good in law.

The plot in question was found to have been left by Syed Badi-uz. Zaman Shah which came to the hands of the appellants and thus the appellants are liable for the satisfaction of the decree in hand. Under section 410 of the C. P. C. it is the liability of the appellants that the creditor's claim is accordingly satisfied by them out of the property attached, if not otherwise paid.

The learned District Judge, attached the property in dispute for recovery of an amount of Rs. 1,28.640 which amount is made up of principal amounting to Rs. 48,000 and interest amounting to Rs. 80,640. The learned District Judge without giving any finding on issue No. 8 burdened the appellants with the interest claimed by the respondent in her application.

A perusal of the decree shows that no interest was awarded to the decree-holder. It was made without any interest on the amount of principal. It is not open to the executing Court to go beyond the terms of decree and to fix the amount of interest and execute the decree allow ing interest when no interest was given by the authority concerned while giving its decision. It is reasonably said that where the decree does not provide for interest, it will be deemed to have been refused unless it can 8 be shown that the silence was due to some mistake. But there is not question here of any mistake even pleaded. Thus the interest not award ed by the decree cannot be awarded in the execution. Evidently, the District Judge was wrong in awarding interest on the principal as assessed by the decree-holder. 'That being so, Issue No. 8 is decided against the decree-holder-respondent.

The learned counsel for the appellants has further made a prayer for payment of the amount decreed in instalments. The decree-holder is not agreeable to the suggestive prayer made by the learned counsel for the appellants. After the passing of the decree for payment of money in lumpsum, the Court in the circumstances of this case is not competent C to order payment by instalments without the consent of the decree-holder

vide, Order XX, rule 11(2), C. P. C. in this behalf.

Therefore, for the reasons above, the appeal is partly accepted to the extent indicated above and partly dismissed, regarding the actual amount decreed in as much as it is to be satisfied out of the property attached.

M. Y. M. Appeal partly accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.