•^^ .^y^ ^v'....,^' .y ^'" ^"" . SingSeB©nch IN THE HIGH COURT QF CHHATTISGARH AT BILASPUR WRIT PETITION ((£) No. of ^60^ ^^ PETITIONER , DECREE HOLDER ^t^ Naresh Kumar, aged about 32 years, S/o Shri Krishna Kumar, R/o Tilda, District -. Raipur, Legal heirs of Sakhi Bai Versus RESPQNDENT JUDGMENT DEBTOR Shivandas S/o Daryanomal Kirana Merchant Shop No. 68, Near Popular General Stors, Neora, District - Raipur (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ^ r/ <? ^ .\ R HIGH COURT OF CHHATTISGARHAT BILASPUR Sinale Bench: Hon'ble Shri Jusfice Prashant Kumar Mishra Writ Petition (2271 No.451 of 2009 C1.. Naresh Kumar versus Shivandas ^ ORDER i. Postfor r &-02-2010 Sd/- prashant Kumar Mishra Judge .^,'^' ^- /^) HIGH COURT OF CHHATTISGARH AT BILASPUR SIrm!e_Berich: Hon'bie Shri Justice Prashant Kumar Mishra Petltioner Respondent versus Naresh Kumar Shivandas Present: Shri Goutam Bhaduri, counsei for the petitioner. Shri Bharat Dembra,counsei forthe respondent. Writ Petition under Article 227 of the Constitution of India ORDER (Passed on l^ February, 201 0) Executing Court's order dated 31-7-2008 (Annexure P-1) has compe!!ed the petitioner/decree-holder to prefer this petition under Article 227 ofthe Constitution of India on the ground that the Executing Court has wrongiy rejected his application under Section 151 of the Code of Clvii Procedure. 2. Undisputedly, the petitioner (iegal heir of originai pSalntiff Sakhibai) filed a suit (Civil Suit No.32-A/1992) for eviction of the defendant/respondent and arrears of rent. The suit was decreed by the trial Court along with damages at the rate of Rs.20/- per day from the date of fIJing of the suit ti!i the vacant possession is delivered. 3. The first appea! preferred by the defendant was dlsmissed. /Second Appeal No.607/1999 was preferred by the ^' ^—- &:. —2.— defendant/judgment-debtor in whlch an interim order was passed on 13-5-1999, which reads as under: "Call for the records of Courts befow and list it for admlssion along with the records. Issue notlce of i.A.No. 1760/99 for stay to the respondent on payment of P.F. which be pald within three days. !n the meanwhile, it is directed that in case decretal amount is deposited, it shaii not be to be withdrawn by the respondent. C.C. asperru!es." 4. During pendency of the second appeal, the execution preferred by the decree-hoider was continuing and in course thereof, a warrant of attachment was issued because the money part of the was not stayed but only its withdrawa! was stayed. In the said execution proceedlng, when the Process Serv'er tried to serve the warrant of attachment, the judgment-debtor deposited one cheque 20-1-2006 for Rs.40,456/- (Annexure P-6). Thls fact js also recorded in the order-sheet of the Executing Court dated 20-1 "2006 (Part of Annexure P-7), however, the Executing Court, vide Its order 21 "3-2006, directed that in vievt/ of the interim order passed by the High Court in Second AppeaE No.607/1999, the decree"ho!der cannot be permitted to withdraw the amount. 5. When the proceedings in the tria! Court kept pending at that Second Appeal No.607/1999 was eventually dismissed as not pr'essed by the order dated 20-2-2008 (Annexure P-8). The said order in SecondAppeal No.607/1999 readsthus: ..,^s.. /> ^ ^ Iffc^- . Is^ • 'l -3.— •i(- UShri S.P.Sahu, iearned counse! for the respondent submitted that the respondent has already obtalned possession of the su'ft premises and would not execute the decree in so far as it relates to awarding at the rate ofRs.20/- per day fromthe date ofsuittiii the amount aiready deposited by the appeflant. (2) !n view of the submlsslon, Shri B.LDembra, learnecf counsel for the appel!ant does not fhls The appealis accordlngly as not pressed." 6. After the dismissal of the second appeai, the decree-holder the subject application under Section 151 of the Code of Civil Procedure on 7-3-2008 (Annexure P-9) and that the amount by the judgment-debtor be paid to him and the judgment- debtor be aiso directed to pay damages of Rs.20/- per day. It is this of the decree-holder whlch has rejected by the Executing Court by the impugned order. 7. Learned counsei for the petitioner has that the Executing Court should have aliovved the decree-hoider to withdra'w the arrsount aiready deposited by the judgment-debtor. 8. On the other hand, Jearned counsei for the respondent has that since the validity of a cheque Is only for a period of 6 months, the cheque Issued on 20-1-2006 has after expiry of 6 months and as such after the said period, it cannot be said that the judgment-debtor has deposited any amount. 9. On perusal of the documents appended to the writ petition, more partjcu!ar!y the interim order by the High Court on 13-5-1999, the order-sheet of the Executing Court dated 20-1 -2006 and the final ^- "^- order passed in Second Appeal No.607/1999,there remains no doubt that the decree-holder is entitEed to withdraw the amount of cheque deposited by the judgment-debtor in course of execution on 20-1-2006. The statement of the decree-holder En the second appea! that he wil! not execute the decree insofar as it relates to awarding damages is clarifjed by the words "except the amount already deposited by the appeilant in Second Appea! No.607 of 1999/respondent herein". In the jnterim order passed in the second appeal also, the High Court had not stayed the money part of the decree. The High Court had oniy dirscted that If the money is "deposlted", it sha!! not be permitted to be withdrawn by the decree-holder. 10. The argument regardlng vaiidity of the cheque for a period of 6 months only is not convincjng because the matter was pending in the Court and that there was an interim order operative against the present petitjoner/decree-holder restrainjng him to withdraw the amount deposited by the judgment-debtor. !t is not in dispute that the amount under the cheque deposited by the judgment-debtor in course of execution of the decree, therefore, the said deposit is excepted from the statement by the petitioner/decree-holder at the time of of the second appeal and that the decree-hoider Is entitled to Vi/Jthdraw the said amount under the cheque 20-1-2006. 11. Snsofar as the other prayer in the appiication under Section 151 of the Code of CJvEi Procedure for grant of damages at the rate of Rs.20/" per day is concerned, it is mentioned only for being rejected. ie order in the second appeai is absolutely clear that the ^s^^ -s- petitioner/decree-holder has made a statement that he shal! not recover damages at the rate of Rs.20/- per day. 12. Jn Achiitananda Baidya vs. PrafuUya Kismar Gayen and (1997) 5 SCC 76, the Hon'ble Supreme Court has held thus: "10. The power of supenntendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence onty butsuch power inciudes withln Its sweep the power ofjudicial revlew. The power and duty of the High Court under Article 227 is essentialiy to that the courts and tribunais, snferior to High Court, have done what they were required to do. Law is welf by various decisions of th!s Court that the High Court can interfere underArdcle 227 ofthe Constltution in casesof erroneous assumption or acting beyond its junsdictlon, to exercise junsdiction, error of law apparent on record as dlstlnguished from a mere mistake ofiaw, arblfrary or capriclous exerclse of authority or discretion, a patent errorln procedure, arn'vlng at a fsnding which is perverse or on no material, or resulting in manlfest injustice. As regards fjnding of fact of the Inferior court, the High Court shoufd not quash the judgment of the subordinate court mereiy on the ground that its finding of fact was erroneous but it will be open to the High Court in exerclse ofthe powers under Afticle 227 to Interfere with the finding of fact If the subordlnate court came to the conduslon wlthout any evidence or upon manifest misreading of the evidence thereby indulglng In improper exercise of jun'sdiction or if its are pen/erse" 13. !n the opinion of this Court, by rejecting the entire application under Section 151 of the Code of Civil Procedure moved by the -< /'decree-holder, the Searned Executing Court has committed an error of -&- jurisdiction, which needs to be corrected by this Court in exercise of powers under Artide 227 of the Constitution of !ndia so as to give effect to the order passed by the High Court itseif in Second Appeal No.607/1999. 14. In the resuEt, this petition under Article 227 of the Constitutjon of Jndia is aliowed onEy to the extent of the amount under the cheque 20-1-2006 for Rs.40,456/-. The Executing Court shall deliver the cheque to the decree-hoider after getting it re-validated from the judgment-debtor. There shali be no order as to costs. Sd/- Prashant Kumar Mishra Judge -L ^opsi