ORDER
R.J. Kochar, J.
1. In the present Chamber Summons, which is taken out
by the defendants following main reliefs are prayed for:-
“That this Honourable Court be pleased to discharge the Court Receiver, High Court, Mumbai, who has been appointed Receiver of the properties bearing Plot No. 159 and 169 more particularly described in Exhibit “E” to the plaint since the Consent Decree dated 9-1-80 have become unexecutable being barred by law of limitation and that the Court Receiver be directed to hand over possession of the said properties to the defendants after removal of all the encroachment and illegal construction on the said properties;
(b) That the plaintiffs’ assignees be directed to refund to the defendants the amount of Rs. 7,56,000/- or in the alternative, the Consent Decree dated 9-1-80 may be marked fully satisfied and the Decree holder may be ordered to refund a sum of Rs.4,35,984/- to the defendants being the amount paid in excess over and above of the decretal dues;
(c) That this Honourable Court be pleased to direct the plaintiffs’ assignees’ Nominee to hand over to the defendants the title deeds of the properties bearing Plot Ho. 159 and 169 more particularly described in Exh. “E” to the plaint.”
2. In support of the Chamber Summons, the defendants have filed an affidavit in support of the same giving the full history of the case and details from beginning upto to date. Since presently we are not concerned with the past history, which is already on record, I would begin from the date on which the parties have filed the consent terms in the above suit and settled their dispute. The consent terms were filed on 9th January 1980 and consent decree was passed wherein the defendants were made liable to make payment by instalments of the decretal amount of Rs, 19,56,215,35. The parties had agreed to the instalments as under:-
i)Rs. 4 lakhs forthwith:
ii)Rs. 4,50,000/- on 30/4/80:
iii)Rs. 5 lakhs on 30/12/1980:
iv) remaining entire balance together with interest payable on 30/6 1981.
It was also provided that in the event, the defendants committing any one default in payment of the instalment then the entire decretal amount as prayed for in prayer (a) of the plaint or the balance thereof then remaining due, shall become payable forthwith and the plaintiffs shall be entitled to and be at liberty to execute the decree against the defendants. It was also provided that in case of such default, the Court Receiver, High Court, Mumbai shall automatically stand, appointed as the Receiver of the suit properties. It is the case of the defendants that they had paid the first instalment of Rs. 4 lakhs forthwith as also the second instalment of Rs. 4,50,000/- and the third one of Rs. 5 lakhs on 30th December 1980. Since neither the defendants nor the surety holders paid the amounts as per the consent decree, there was default in payment of the said instalment. Consequently the consent decree became executable on 30th April 1980 and the entire decretal amount then remaining due became payable forthwith. However, the surety paid the sum of Rs. 4,50,000/-on or about 28th May 1980. As a result of the aforesaid default, the plaintiffs filed an execution application on 7th April 1995. Shri Kotwal, the learned Counsel for the defendants has therefore submitted that the aforesaid execution application which is filed after a lapse of 12 years is not maintainable and therefore the execution application should be dismissed. The defendants have also prayed that they have fully satisfied the entire decree and it should be recorded that the decree has been satisfied. Not only that, the defendants have sought refund of an amount of Rs. 7,56,000/- from the plaintiffs’ assignee as they have made the payment in excess to that extent.
3. As against the said contention of the defendants, the plaintiffs’ assignees have submitted that there is no delay in filing of the execution application and they are entitled to exclusion of a period of 1544 days on account of the stay granted by the Court at different stages in the Chamber Summonses taken out by the plaintiffs’ assignees and the nominees. The second contention of the plaintiffs’ assignees is that, since the disputed two payments of Rs. 4,50,000/- and Rs. 6,25,000/- and odd, were not recorded as required under Order XXI, Rule 2 of the Code of Civil Procedure, 1908 and no certification was obtained by the defendants, such payments cannot be recognised and therefore the defendants are liable to make the aforesaid two payments as the decree cannot be held to have been satisfied to that extent. It is very strongly urged on behalf of the plaintiffs’ assignees that the procedure provided under Order XXI, Rule 2 is mandatory and if it is not complied with, any payments allegedly made by the defendants cannot be recognized and therefore the learned Counsel vehemently argued that there is not only no question of refund of the payment to the defendants by the plaintiffs’ assignees but there is no satisfaction of the whole decree itself by the defendants. Besides these aforesaid two contentions, the learned Counsel also submitted that the Chamber Summons itself is not maintainable for the reliefs claimed by the defendants.
4. Both the learned Counsel for respective parties have relied upon a number of decisions of this Court as well as Supreme Court to decide whether the execution application filed by the plaintiffs’ assignee is barred by limitation?
5. The undisputed dates to count the limitation are as under:-
a)
9-1-80
:
Consent decree
b)
30-4-80
:
default in payment occurred and the decree became executable on 30-4-80,
c)
7-4-95
:
Execution application under Order XXI, Rule 2 was lodged before the Prothonotary & Senior Master:
d)
2-5-95
:
Decree was lodged with the Execution Department,
From the aforesaid dates it is crystal clear that the decree became executable on and from 30th April 1980 and the limitation provided for execution of a decree is 12 years. It is therefore ex facie that the execution application which was lodged on 7-4-95 was barred by limitation as it was filed much after the limitation period prescribed. It is also an admitted position that no notice was issued under Order XXI, Rule 2 of the Code of Civil Procedure or under Rule 316 of the Bombay High Court (OS) Rules, 1980 which provides for issuance of the notice of the application for execution. It is also found that no application under section 50 of the Code of Civil Procedure to execute the decree against the legal representatives of the deceased was filed. Under Order XXI, Rule 11(2) (g) a fixed, definite sum of the decree has to be recorded. From the record it is clear that there has been a vast discripancy between the amount claimed in the execution application and the actual amounts allegedly due as decretal amount stated by the plaintiffs’ assignees. There are different figures given at different places. One thing is there for sure that the execution application does not contain a definite and clear amount for execution.
5. I am not at all satisfied with the contention of Shri Shetye, the learned Counsel for the plaintiffs’ assignees that there should be exclusion of 1544 days from the limitation period which they relate to the stay orders. It appears that such stay orders were never obtained by the defendants and therefore the said period cannot be excluded from the execution period which is 12 years. The so called stay orders obtained by the plaintiffs’ assignees themselves and/or their nominees inter se cannot defeat the right accrued to the defendants. If the plaintiffs’ assignees and their nominees file certain proceedings and obtain certain stay orders they cannot take advantage of such orders and therefore the aforesaid period cannot be excluded from the limitation period prescribed for execution of the decree. I therefore, hold that the execution application filed by the plaintiffs’ assignee is clearly barred by limitation and the same deserves to be dismissed and they cannot be given any. relaxation in execution of such a decree.
6. Now coming to the second point of the defendants that they have made payment of the following two amounts, viz., (i) Rs. 4,50,000/- and Rs. 6,25,587/- towards the satisfaction of the decree, the plaintiffs’ assignee have disputed the two payments. I am not at all satisfied with their negative approach on these points. It is very clear from the entire record and even from the submissions on behalf of the plaintiffs’ assignees that they are merely shirking the responsibility and/or evading to admit the receipt of the said amount. Otherwise, it is clear from the record that these two amounts have been paid on behalf of the defendants and there are clear admission to that effect, which would indicate that the plaintiffs’ assignees had full knowledge of these two payments. Furthermore, the defendants have also led oral evidence before this Court to establish from the record that these two payments have already been made by the defendants.
6A. From a letter dated 15th January 1981, addressed by the plaintiffs’ attorneys to the defendants two things are clear.
i) they had called upon the defendants to make the payments as per the consent terms failing which they had threatened the execution of the decree which according to them had become executable.
ii) The second letter dated 3rd February 1982, the said attorneys have clearly stated that the defendants had paid two instalments each of Rs. 4,50,000/- on 19th January 1980 and 28th May 1980.
This was recorded in their letter dated 3rd February 1982. In an affidavit dated 20th October 1982, filed by a managing clerk of the said attorneys in para 4, it is clearly stated that the payments have been received from the defendants. He has stated on oath that the defendants had paid instalments of Rs. 4 lakhs on 19th January 1980 and Rs. 4,50,000 on 28th May 1980. He has further stated that the decree became executable on 9th January 1980. It is thus very clear that the plaintiffs’ attorneys have recorded the aforesaid payment of Rs. 4,50,000/- made by the defendants to the plaintiffs towards the decree. If the plaintiffs who are the decree holders have recorded the receipt of the aforesaid payments of Rs. 4,50,000/-, there is no law which says that such payment should be totally ignored, merely because there is no formal recording of the said payment before the Court. In my opinion, to do so would be to stretch too far the procedural technicality which would encourage dishonesty and the procedural laws cannot be stretched to such an extent that instead of doing justice, injustice is caused to the parties. Technically perhaps the defendants have committed a lapse by not formally going to the Court and getting it recorded. However an admission of receipt of the said payment from the attorneys of the plaintiffs and from the affidavit of their managing clerk cannot be totally ignored and according to me denial of receipt of such payment is not only illegal but immoral also. I am not able to divorce law from morality. According to me, law is based on moral values of the society. Law is not devoid of morals. After all, the procedure is handmade of justice and no procedural formalities can be used to defeat moral values and to encourage dishonesty on the part of the parties. It is significant to note that the plaintiffs’ assignees are not categorical or clear about non receipt of the said amount, but they are making distinction on technicality that the said amount might have been paid to the plaintiffs and not their assignees or nominees. Even such a distinction is clearly fallacious and far from truth as it is evidenced from another letter dated 17th October, 1986, addressed by Ashwinkumar and Co., the Advocates for nominees of the plaintiffs’ assignees. They have clearly admitted in this letter that they have taken the assignment of the consent decree dated 9th January 1980 and that they have paid a sum of Rs. 18,25,587,58 as deposited and to be released to the plaintiffs only on completion of the assignment. At the foot of the said letter they have enumerated the payments amongst which one is a Pay Order No. 1294 for Rs. 6,25,587.58. The aforesaid amount of Rs. 6,25,587.58 was contributed by the partner of M/s. Laxmi Constructions who were the sureties on behalf of the defendants. If this amount is paid towards the decretal amount which is found from record and even in affidavits it cannot be ignored altogether merely because it is not technically recorded by the defendants. It is an admitted position that the plaintiffs’ assignee, i.e. Laxmi Construction Co., who were also the sureties for defendants, had made the payments towards the decretal amount and therefore that will have to be adjusted and recognised towards the satisfaction of the decree.
7. Since the plaintiffs assignees themselves have accepted and have recorded the receipt of the aforesaid two disputed payments, in my opinion, it would be in full compliance with the Order XXI, Rule 2(i) as that amounts to certification by the decree holder. It would be gross injustice to ignore such payment merely because the formality of getting the said payment recorded before the Court is not complied with. If that is so, these two payments will have to be adjusted towards the decretal amount and towards the satisfaction of the claim. I cannot accept the contention of the learned Counsel for the plaintiffs’ assignee that they have paid the amount of Rs. 6,25,000/- as a consideration for buying the decree. This is a clever arguments of the learned Counsel to shirk the admission of responsibility of Rs. 6,25,000/- towards the satisfaction of the decree. The decree is purchased for the entire amount of Rs, 18 lakhs and odd which includes the payment of Rs. 6,25,000/ and odd, it cannot be said that in addition to the said amount of purchase, some other amount of Rs. 6,25,000/- as so called consideration for purchase of decree has been paid.
8. Since I have already held that the execution application is barred by limitation, the same deserves to be dismissed and is dismissed accordingly. I have also dealt with the issue of complete satisfaction of the decree as that would conclude the entire issue at this stage. In the Chamber Summons, the defendants have prayed for direction to refund the amount of Rs. 7,56,000/ – as according to them, they have made excess payment or in the alternative they have prayed that the decree may be marked as fully satisfied and that the decree holder may be ordered to refund the sum of Rs. 4,35,984 to the defendants being paid in excess over and above the decretal amount. As rightly submitted by Shri Shetye, the learned Counsel for the plaintiffs’ assignee, I cannot decide that issue in this Chamber Summons as I will have no jurisdiction to entertain any refund claim in the execution proceedings. I therefore reject the defendants’ prayer of refund of the allegedly excess amount paid as contained in prayer clause (b) of the Chamber Summons. I however declare that the consent decree has been fully satisfied and it be marked as having been fully satisfied. The Chamber Summons is made absolute in terms of prayer clauses (a), (b) and (c) to the extent that the decree has been fully satisfied.
The Chamber Summons is disposed of accordingly.
The learned Advocate for the plaintiffs’ assignee prays for stay of this order for four weeks. Since the matter is lingering in this Court for years together, I am not inclined to grant stay to this order.
The Court Receiver shall act on an ordinary copy of this order duly authenticated by the Chamber Registrar.
9. Chamber Summons made absolute.