JUDGMENT
D.P. Sood, J.
1. By this application under Section 151, Civil Procedure Code, Judgment-debtor No. 3, Ram Murti, has prayed for the release of the amount of Rs. 57,307 which was ordered to be deposited in fixed deposit with the decree-holder’s bank.
2. Pursuant to a joint and several decree passed against the judgment-debtors in Bank of Baroda v. Sharma Industries, In re (C. S. No. 68 of 1984, dated 20th August, 1984), the decree-holder filed the instant execution petition in the sum of Rs. 1,34,905.16 on March 28, 1986. During the pendency of the aforesaid proceedings, the decree-holder also filed an application registered as OMP No. 25 of 1987 on February 21, 1987, which remained pending disposal till March 20, 1990 and the same was disposed of as withdrawn as per the statement of learned counsel for the decree-holder as not being pressed at the present stage of the proceedings. In between this period from February 21, 1987, till March 20, 1990, both the parties filed various applications out of which OMPs No. 139 of 1988 and 232 of 1988 with reference to OMP No. 25 of 1987 are material for the decision of the instant application. By the first application OMP NO. 25 of 1987, the decree holder sought the arrest of judgment-debtors Nos. 2 and 3, namely, Ram Sarup (principal debtor), and Ram Murti (guarantor). On May 26, 1987, this court passed the following order in OMP No. 25 of 1987 :
“It is stated by learned counsel for the judgment-debtors that the amount of compensation out of land acquisition proceedings has not been received so far. He also prays for more time to file a reply on behalf of judgment-debtor No. 3. This be done before the next date of hearing and the case be listed before the court on June 3, 1987.”
3. Subsequently, judgment-debtor No. 2, Ram Sarup, deposited an amount of Rs. 10,000 on September 21, 1987, towards the liquidation of the decretal amount as is apparent from the order passed on September 22, 1987. On that date, he had clarified to this court that his case for compensation has not yet been finalised and he also owned another plot at Parwanoo and he was trying to sell the same for liquidating the decretal amount. By the same order judgment-debtor No. 3 was directed not to receive any compensation from the court of the district judge, Solan, regarding land acquisition proceedings till further orders of this court. It would be pertinent to note that, till then reply had not been filed by judgment-debtor No. 3 to OMP No. 25 of 1987. On May 16, 1988, Shri Dharamchand, appearing on
behalf of the applicant, Ram Murti, judgment-debtor No. 3 in OMP NO. 139 of 1988, had made a statement before this court as stated in that application that a sum of Rs. 57,322 has become payable to judgment-debtor No. 3 towards his share in the amount of compensation in the court of the learned Additional District judge, Solan, whereupon the said sum was sent for from that court to be remitted in the name of the Registrar of the High Court. Subsequently, on July 6, 1988, some understanding appears to have been arrived at between the judgment-debtors and the decree-holder and this court passed the following order in OMP No. 139 of 1988 as under :
“A sum of Rs. 57,307 has been received in the registry of this court. In view of the orders made in OMP No. 232 of 1988 and further due to an understanding between the decree holder and the judgment-debtor that this amount would not be appropriated towards the decretal amount pending payment of the decretal amount by the principal debtor judgment-debtor No. 2, it is ordered that the amount received in the registry be deposited with the decree holder bank in a fixed deposit for a period of 37 months. The case be listed after two months.”
4. At this stage, learned counsel for judgment-debtor No. 3 has stated that he had not made any such statement to this court regarding any such understanding having been arrived at between the parties as incorporated in this order. However, he admits that this order was dictated in his presence. Thus this order has to be taken as such in view of the presumption of truth attached to it under the law. On the same day, another order in OMP N. 232 of 1988 was passed which is given below :
“Judgment-debtor No. 2, applicant, is the principal debtor. He is likely to receive some compensation from the H. P. Housing Board in lieu of some property belonging to him which has been acquired. An undertaking has already been given by judgment-debtor No. 2 that he would not receive the said amount of compensation and would in the first instance pay the decretal amount. He has, therefore, prayed for postponement of execution proceedings. Shri Dharam Chand, learned counsel for the said judgment-debtor, today prays that this case be adjourned for two months. This arrangement has been acceded to by the decree holder bank. Let this case be, therefore, listed before the court after two months.”
5. On May 31, 1989, learned counsel for the decree-holder stated that the amount of compensation likely to be received by the judgment-debtors will not fully meet the decretal amount and as the said judgment-debtors are proceeding ahead with alienating other properties owned by them, this court ordered that the latter will not alienate, encumber or sell any other
property belonging to them without obtaining specific orders of this court in the matter, as is apparent, from the order dated May 31, 1989. Subsequently, in the main execution petition, the following order was passed on March 20, 1990 :
“This decree was likely to be satisfied through the payment of amount of compensation likely to be received by the judgment-debtors from the court of the learned district judge, Solan, in acquisition proceedings. A reference has accordingly been made and the case was being adjourned from, time to time.
It has now transpired that appeals lying in the High Court in those land acquisition proceedings have been decided whereby the case has been remanded to the district court. It is now stated at the Bar that the amount of compensation cannot be paid to the judgment-debtors till the case is reheard and decided by the district court. This process is likely to take considerable time. In the circumstances let the decree holder proceed against the other property owned by the judgment-debtors for which purpose as prayed let the judgment-debtors file a fresh affidavit in the prescribed form within the ambit of Order 21, Rule 41 of the Code of Civil Procedure disclosing their assets. This be done within the next two weeks and the case be listed thereafter.
As regards the payment of amount of compensation against acquisition proceedings, as and when due it has been stated at the Bar by Mr. Dharam Chand on the basis of instructions received in court from judgment-debtors Nos. 2 and 3 that they would not receive any compensation without first obtaining orders of this court or unless the present decree is satisfied whichever is earlier.”
6. Pursuant thereto, the judgment-debtors were directed to disclose their assets afresh as envisaged under Order 21, Rule 41, Civil Procedure Code. Also, as a consequence of the said order, OMPs Nos. 139 and 232 of 1988 were dismissed as having become infructuous. As observed above, OMP No. 25 of 1987 was not pressed and was dismissed as withdrawn.
7. Now, in view of the allegations made in the instant application that the amount of compensation awarded to the owner under the Land Acquisition Act cannot be attached in the eye of law, the applicant has sought the relief pertaining to its release through the instant application.
8. The case of the applicant, Ram Murti, judgment-debtor No. 3 is that the order pertaining to the retention of the aforesaid amount under the orders passed by this court, as indicated above, cannot be attached nor
could it be appropriated towards the liquidation of the decretal amount as such, it should be released in his favour. The decree-holders, through their learned counsel, have vehemently contended that orders passed by this court do not amount to orders of attachment of the compensation. Rather the aforesaid amount, though in the initial stage was ordered to be remitted by the court of the learned Additional District Judge, Solan, in the name of the Registrar of this High Court, but later, on the basis of the understanding arrived at between the judgment-debtors including the applicant and the decree-holders, it was detained at the behest of Ram Murti, judgment-debtor No. 3. It is pointed out that he had himself undertaken that the said amount be deposited in a fixed deposit carrying interest and that he would not be withdrawing the said amount till the orders of this court are sought. Rather it was further agreed that this amount would not be further appropriated towards the liquidation of the decretal amount pending payment of the decretal amount by the principal debtor, judgment-debtor No. 2 and this arrangement was agreed to between the parties to the instant proceedings (vide order dated July 6, 1988, referred to above).
9. Rival submissions made by learned counsel have carefully been considered by this court. The entire record has also been gone through thoroughly.
10. It is well-established that the compensation awarded under the provisions of the Land Acquisition Act is not attachable nor can it be unlawfully detained.
11. Admittedly, there is no order of attachment passed at any time by this court. Also, all the orders referred to above were passed only subsequent to the filing of OMP No. 25 of 1987 pertaining to the relief seeking the arrest of both the judgment-debtors. It is to be noted that reply to OMP No. 25 of 1987 to the said application was ultimately filed by judgment-debtor No. 3 on June 5, 1987, wherein, in para 3 thereof, it had been clearly stated that judgment-debtors Nos. 2 and 3 are keen to pay the amount to the decree-holder and are trying earnestly and honestly to arrange for the same. It is clear from the statement of judgment-debtor No. 2 recorded by this court on March 23, 1987. (record, i.e., order dated March 23, 1987, that judgment-debtor No. 2 had given an undertaking on that date that he would be depositing the entire amount of compensation received out of the land acquisition proceedings of Parwanoo land.). The applicant has stated therein that he was merely a guarantor in the case and he can be made liable only if judgment-debtor No. 2, Ram Sarup, failed to make the payment to the decree-holder. In para 3 thereof, it was submitted that the judgment-debtors
were trying to arrange the amount to be paid to the decree-holder as submitted in the previous paras.
12. The disclosure statement under Order 21, Rule 41, Civil Procedure Code, submitted by the applicant on two occasions dated August 8, 1986, and April 7, 1990, indicate that he has got negligible movable or immovable property. Admittedly, the land in question regarding which compensation is required to be released in his favour was acquired in the year 1976-77. There is also no dispute that he stood guarantee to the loan given to the principal debtor in the year 1982. In other words, at that time, he had no property though he stood guarantor as such to the loan amount and this fact was also not enquired into by the decree-holder. Now, during the execution proceedings the latter have come to know of compensation being paid to judgment-debtor No. 3 under the provisions of the Land Acquisition Act but the same was not attachable, in the eye of law. It appears that the decree-holders arrived at an understanding with the judgment-debtors and they thus acceded to the arrangements agreed to between them to the effect that they will not appropriate the amount of compensation towards the decretal amount unless it is paid in toto by the principal debtor Ram Sarup. In other words, judgment-debtor No. 3, by operation of blending, had voluntarily thrown his share of the amount of compensation into the assets disclosed by him under Order 21, Rule 41 of the Code of Civil Procedure with the intention of abandoning all separate claims upon it, i.e., he discarded his claim that it is his lawful property, or that it is not attachable being the compensation paid to him under the provisions of the Land Acquisition Act. The order dated July 6, 1988, indicates that judgment-debtor No. 3 had a clear intention to waive his separate rights to it as a lawful property or it being not attachable as such. Ram Sarup, judgment-debtor No. 2 had volunteered to deposit the entire compensation towards the liquidation of the decretal amount and, in that view of the matter, judgment-debtor No. 3’s request to the decree-holder that his compensation amount be not appropriated towards the liquidation of the decretal amount till the same was paid by judgment-debtor No. 2 or if he failed to do so, his liability only be fixed. Subsequently, from the orders passed by this court it appears that, in such circumstances, the applicant judgment-debtor No. 3 had categorically undertaken not to withdraw the said amount till the entire decretal amount was paid by judgment-debtor No. 2 or that the decree was satisfied except with the orders of this court and thereby he thus avoided the ultimate decision to be passed by this court in OMP No. 25 of 1987 and, in view of the above-said understanding having been arrived at between them the decree-holder agreed not to press
the OMP No. 25 of 1987 and thus allowed it to be dismissed as withdrawn at that stage.
13. The cumulative effect of the entire discussion made above is that the application cannot be allowed as judgment-debtor No. 2 had, admittedly, not made the payment of the entire decretal amount. Also the applicant had voluntarily thrown the said compensation amount into his assets liable to be attached under Order 21, Rule 41, Civil Procedure Code, and abandoned his lawful right to claim the same as his lawful property.