ORDER
S.C. Mohapatra, J.
1. Judgment-debtor is the petitioner against an order rejecting the objection under Section 47, Code of Civil Procedure.
2. Decree-holder is a works contractor. Dispute having arisen in respect of the work executed by the decree-holder, the same was referred to an Arbitrator. In spite of the claim of about Rs. 23 lakhs by the decree-holder, the Arbitrator awarded Rs. 2,64,9557- only with interest at 10% from 8-8-1973 to 18-7-78 in his award dated 1-11-1980. Judgment-debtor challenged the same under Sections 30 and 33 of the Arbitration Act, 1940 (for short the Act’), while the decree-holder applied for the award to be a rule of the Court. The objection of the judgment-debtor having been rejected, the award was made a rule of the Court with costs and a decree was drawn up on 10-4-1981. The judgment-debtor filed an appeal under Section 39 of the Act in this Court which was dismissed on 14-7-1981. Although the judgment-debtor contemplated of challenging the order of this Court in the Supreme Court, there is no material in record to indicate that the matter was in fact challenged in that Court.
3. On 1-7-1981, the decree-holder filed Execution Case No. 6 of 1981 for realisation of the amount decreed. Although notice was served on the Executive Engineer who was acting on behalf of the State Government, the judgment-debtor did not appear on 27-7-1981 to which date the case was posted. The Executing Court, however, fixed the case to 3-8-1981 for the decree-holder to take next step. On 3-8-1981, the learned Government Pleader appeared and prayed for adjournment on the ground of being engaged in a sessions trial. The case was adjourned to 31-8-81 for payment of the decretal dues by the judgment-debtor. On that date, the learned Government Pleaderprayed for adjournment on the ground that sanction was to be obtained from the State Government. Case was adjourned to 21-9-1981 for payment by the judgment-debtor. That day, the judgment-debtor remained silent and the executing Court fixed the case to 23-9-1981 for the decree-holder to take next steps. While the decree-holder submitted on 23-9-1981 that he had already filed the requisites, the judgment-debtor shifted the ground of adjournment to its having taken steps for preferring appeal before the Supreme Court. This was also accepted by the executing Court and the case was adjourned to 21-10-1981 for further orders. On that date, the judgment-debtor remained silent. However, on 28-10-1981, while the decree-holder intimated that the judgment-debtor had not filed any appeal, the judgment-debtor did not appear but a petition was filed by some Tripathy on behalf of the judgment-debtor making vague statement that the Advocate General had intimated that the documents had been sent to the Law Department for further move and the judgment-debtor was to take further steps after receiving the documents for which adjournment for one month was sought for. The Executing Court rightly rejected the petition and directed the office to check up the steps taken by the decree-holder for attachment. The case was posted to 30-10-1981. On that day, an application with affidavit of the Executive Engineer was filed for adjournment for one month on the ground that steps had been taken to prefer appeal before the Supreme Court for which time had not run out. The Executing Court took a liberal view of the matter and adjourned the case to 27-11-1981.
4. It seems the decree-holder addressed a letter dated 28-10-81 to the Additional Chief Engineer for negotiation and in reply a telegram was sent on 31-10-1981 to the decree-holder calling upon him for negotiation on 3-11-1981. The Executive Engineer was also directed to attend. On 3-11-1981, the decree-holder wrote that he was not willing to have any negotiation. However, he offered that in case payment of Rs. 4,17,455.50 paise is made to him by 30-11-1981. he would reduce the balance amount of Rs. 5,000/- from the amount under execution. The letter which has been marked as Ext. A reads as follows :
“To
The Additional Chief Engineer,
Minor Irrigation, Orissa,
Bhubaneswar.
Sub : Claim for Goibandh M.I.P.
Arbitration Case No. M.A. 55/81-
Ref : Your letter No. 30319 dt. 31-10-81.
Sir,
With reference to your above mentioned letter, I have to inform you that my claim in the above mentioned case was for nearly Rs. 23,00,000/-. But to my misfortune as per the award given by the Arbitrator and decision taken by the Addl. Sub-Judge, Phulbani in O.S. 2/80 the total amount with interest comes to Rs. 4,22,455.50 paise if paid to me by 30-11-1981, I have actually been put to huge loss due to the award. Hence I am not at all willing to make any negotiation on this. But since you have called me for negotiation and since an early payment without any further litigation is much preferred by me at present, I am willing to reduce Rs. 5,000/- (Rupees five thousand) only and the balance amount of Rs. 4,17,455.50 may please be made to me by 30-11-1981.
It may be mentioned here that my negotiation holds good if payment is made by 30-11-1981. Thereafter, it will cease to operate.
Yours faithfully,
Sd. U. N. Tripathy,
3-11-81
Claimant/Contractor”.
5. In spite of the letter, the fact was not brought to the notice of the Court on 27-11-1981 when a petition for adjournment was filed on behalf of the judgment-debtor stating that the competent authority had already been moved for sanction of the decretal amount for payment to the decree-holder and it will take a month to receive the sanction from the competent authority. Prayer was made to adjourn the case for one month. The Executing Court adjourned the case till 22-12-1981.
6. From the Execution case record, I find a copy of letter of the State Government in Agriculture and Co-operative Department to the Chairman, DRDA, Phulbani, sanctioning Rs. 4,17,455.50 paise to be paid in time (before 30-11-1981) which was forwarded by the Deputy Secretary the Project Officer. DRDA, Phulbani/Executive Engineer/ Government Pleader, Phulbani in memo No. 39512/AC dated 27-11-1981. There is copy of another letter No. 3146 dated 30-11-1981 from the Project Officer to the Executive Engineer enclosing a cheque of Rs. 4,17,455.50 paise wherein it has been indicated that the payment should be made on 30-11-1981 giving instruction in respect of other details.
7. On 30th November, 1981, a petition was filed by the judgment-debtor after service of copy to the learned counsel of the decree-holder wherein it was stated that the judgment-debtor intended to pay the amount of of Rs. 4,17,455.50 paise to the decree-holder that day after obtaining the receipt from him to his lull satisfaction, hut the decree-holder was not in attendance in Court or in the office of the Executive Engineer till the late hours that day and as such, it was not possible to pay the amount to the claimant as agreed to between the parties earlier. It was, therefore, prayed to call upon the decree-holder to receive the said amount and for that purpose to fix a date. The case was not posted to 30th November, 1981. No petition had been filed to advance the date and to bring up the record. However, the Executing Court passed an order to put up the matter on 10-12-1981 to receive payment of the amount from the judgment-debtor. On 10th December, 1981, the Executive Engineer, filed a memorandum that the judgment-debtor is present to pay the decretal amount of Rs. 4,17,455.50 paise to the decree-holder, a copy of which was served on the learned counsel for the decree-holder who made an endorsement that he had no objection to receive payment on part satisfaction of the decree. That day objection was also filed by the decree-holder with copy to the learned Government Pleader that there was no intimation given to him to take the money by 29th and the money has not been deposited in Court also. Therefore, the negotiation if any had failed. In spite of the endorsement by the learned counsel for the decree-holder, no payment was made even on 10-12-1981. As the Presiding Officer was absent on that day, ease was posted to 18-12-1981. On that day counter to the objection by the decree-holder was filed to the effect that the negotiation and the agreement were binding on the decree-holder which was valid and continuing and in spite to the fact that according to the agreement, the judgment-debtor attended the Court on 30th November, 1981 to make payment, the decree-holder did not appear in Court on that day. The case was posted to 12-1-1982 for hearing both the sides.
8. On 19-12-1981, a petition was filed by the learned Government Pleader for the judgment-debtor for advancing the date and another petition along with a cheque for an amount of Rs. 4,17,455.50 paise in favour of the Court praying for accepting the same for encashment in the State Bank of India, Phulbani Branch and for paying the amount to the decree-holder. Although the copy was not served the Nazir was directed to accept the cheque and deposit the same in the Treasury as early as possible, as desired by the judgment-debtor.
9. On 28-1-1982 the decree-holder was allowed to withdraw the amount of Rs. 4,17,455.50 paise deposited on 19-12-1981 towards satisfaction of the decretal amount. This order was challenged by the judgment-debtor in Civil Revision No. 456 of 1982 making a grievance that the Executing Court while releasing the money to the decree-holder should have directed clearly to obtain a certificate from him that the decretal dues were satisfied and the Execution case was struck off on full satisfaction. After hearing the judgment-debtor, Order No. 3 was passed on 7-10-1982 that the Civil Revision would not be entertained since it was not thought that there was any necessity for apprehension of the State that after the amount is paid the decree-holder is likely to pursue his claim under the decree for the amount that was reduced while paying Rs. 4,17,455.50 paise,
10. To resume, on 12-1-1982 the learned Government pleader prayed for adjournment on the ground that the Government had been moved to supply papers. The same was also the ground on 5-2-1982. On 19-2-1982, the letter dated 3rd November, 1981 extracted earlier in this judgment was filed. On 3rd March, 1982, again application for adjournment was filed on the ground that the original agreement could not be produced and the officers who were to be examined as witnesses were busy on account of the financial year coming to a close. On 8-4-1982, again adournment was sought for on the ground that the Additional Chief Engineer who was to be examined was absent. On 29-4-1982, two witnesses were examined. The Additional Chief Engineer examined as P.W. 1 proved Ext. A and stated that if the amount would have been paid by 30th November, 1981 towards the decretal dues it would have been deemed that the decree has been satisfied in full. He has not breathed a word that it was agreed that the amount would be received on 30-11-1981, in Court by the decree-holder. The Executive Engineer examined as P.W. 2 stated that he could not pay the money on 30th November, 1981, as there was nobody to receive the payment. This fact is not correct since the amount could have been paid to the learned counsel for the decree-holder also. He stated that on 10-12-1981 the decree-holder not having prayed to receive the money the deposit was made on 19-12-1981 towards the lull satisfaction of the decree. On 10-12-1981 also the amount could have been deposited. In cross-examination it was stated that on 29-11-1981, he contacted the decree-holder over phone informing him to attend the Court on 30th November, 1981 to receive the payment and the decree-holder agreed to it. When further examined he stated that he had phoned through the P.A. to the Superintending Engineer, Berhampur at about 3.30 P.M. He denied the suggestion that he had not talked over pnone with the decree-holder. By order dated 6-5-1982 the Executing Court rejected the prayer of the judgment-debtor to record full satisfaction of the decree. The case was posted to 15-5-1982 for payment of the balance decretal dues. When steps were being taken by the decree-holder for attachment on 22-10-1982, a petition was filed by the judgment-debtor for dismissal of the Execution Proceeding. After adjournments till 21-6-1983, the said petition was registered as a Misc. Case and by the impugned order the application was dismissed with a finding that the decree-holder is entitled to levy execution for the balance amount of Rs. 85,257.35 paise.
11. It is submitted by the learned Additional Standing Counsel in support of the revision petition that the observation of this Hon’ble Court Civil Revision No. 456 of 1982 concludes that matter. Apart from the fact that the Civil Revision was not entertained and the observation was given ex pane without hearing the decree-holder, the contention is also not acceptable since such contention was raised in the Execution Case earlier and was rejected by order dated 6-5-1982 which has become final between the parties not being challenged by the judgment-debtor.
12. The general principle is that a debtor is to follow the creditor. The trend of events, as have been narrated and as pressed by the learned Additional Standing Counsel, indicate that the employees of the State Government have a feeling that in respect of matters where the State Government is a debtor, creditor is to follow the debtor. This attitude of the public servants has been responsible for a feeling that the rule of law is different for the State Government than for a citizen whose Government it is. The earlier the same is avoided the better would be the feeling of the citizen. Be that as it may, the letter of the Deputy Secretary while intimating the sanction clearly indicates that the amount was Co be paid by the 30th November, 1981. While sending the cheque on 30th November, 1981, the Project Officer also requested the Executive Engineer to make the payment on that date. The normal duty of the Executive Engineer was to rush to the decree-holder, even to his residence for payment of the amount or to make the payment of the amount to the learned counsel for the decree-holder in Court instead of filing a petition in Court on that date when the matter was not fixed for any purpose in Court that the decree-holder was not available. The application reflects the attitude of the Executive Engineer that the decree-holder should have been at his beck and call since he is to receive the amount. 1 am not able to appreciate such attitude. The learned Additional Subordinate Judge has rightly held that the amount is a part payment of the decree and the balance is a part.
13. Legislature has amended Order 21, Civil Procedure Code so that the age-old saying that the miseries of the decree-holder start after obtaining the decree is eradicated. State Government and its officials are to act in a manner by which the legislative intention is well reflected in their actions. Instead, an order which has the seal of finality when felt not to be correct, is attempted to be avoided The quicker the said attitude is given up, the better it would be for the society.
14. In the result, the Civil Revision is dismissed. There shall be no order for costs.