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PETITIONER: BANK OF BARODA

       Vs.

RESPONDENT: R.M. PATWA & ANR.

DATE OF JUDGMENT:       12/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1662            1996 SCC  (2) 468  JT 1996 (2)    35        1996 SCALE  (1)727

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      It is  rather very strange and surprising that the High Court has  hijacked the execution proceedings; converted the execution  proceedings  into  case  and  counter  cases  and granted decree/order even between strangers to the execution proceedings in its revisional jurisdiction under Section 115 of the  CPC. The facts are very simple but the learned Judge has made  them  complicated  ones.  The  appellant-Bank  had obtained a  money decree  against the  first respondent R.M. Patwa, proprietor, M/s. Indian Crude Corporation, Indore and another for  a sum  of Rs.55,000/-  with interest  at 9% per annum and future interest by decree dated April 6, 1981. The appellant filed  an execution  application-case No.  7823 in Civil Suit  No. 77-B/76-81. Therein the judgment debtor made an application under Section 151 CPC on March 4, 1986 with a request that  amounts lying  to the  credit  of  the  second respondent G.K.Kakkani,  Proprietor, M/s.  Oriental  Traders lying with  the appellant-decree  holder,  may  be  adjusted towards  the   decree  debt.   It  is  now  clear  from  the facts that  there is  a dispute  between the  appellants and Kakkani and  a writ  petition filed  under  Article  226  in Bombay High  Court for recovery of the amount was dismissed; SLP  was  also  dismissed  by  this  Court.  The  Additional District Judge  by his  order dated  May  2,  1992  directed adjustment as  prayed for.  When the  appellant carried  the matter in  revision, the  High Court  in Civil  Revision No. 297/92, dated  10.5.1995 has  given in  paragraph 11 certain directions  in   a  confused  fumbling  way  and  ultimately disposed of  the revision  in the  light of  the  directions contained therein.  On an  analysis of  the directions  they would run like this:      [i] the  amount received  from the  Prothonotary,  High Court of  Bombay with interest payable thereon computable as on March  31, 1986  and lying  in the  account of the second

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respondent Kakkani  be adjusted  to the  decree debt due and payable by the first respondent:      [ii] the  amount computed  was on  that date  would  be Rs.5,37,017-16 ps.  and after adjustment of the said amount, the appellant was directed to pay over the balance amount to Kakkani with interest at 19% till the date of the payment.      iii) the  judgment-debtor R.M.  Patwa was  directed  to reimburse the  amount adjusted  by the  Bank to  the  second respondent within  three months  thereafter.  The  Bank  was directed to forego the interest payable on the decree amount or any amount thereof. Calling these directions in question, this appeal has been filed.      It has  been contended  for the appellant-Bank that the High Court  has travelled beyond the revisional jurisdiction under Section  115 CPC  and granted  decrees and set off. He contended that  in  money  decree  recoverable  from  Patwa, admittedly, the  High Court  has converted this money decree into a  decree in  favour of  the second respondent which is impermissible under the law.      Shri H.N.  Salve, the  learned senior counsel appearing for the  second respondent  contended that  the Bank being a nationalized Bank  and having  had an  account of the second respondent with  it, is  bound under  law to either pay back the amount  to him  or adjust the amount payable towards the decree debt  of the  first respondent. Admittedly, there was some amount lying to the credit of the second respondent with the  Bank. The  said amount ought to be either given to the second  respondent or adjusted to the decree debt of the first respondent  in terms  of the  undertaking given by the second respondent.  The  High  Court,  therefore,  has  done justice to  the parties  and that  there is no illegality in the action.      Having considered  the respective contentions, the only question for  consideration is whether the High Court or the executing Court could go into these controversies and direct adjustment against  the will  of the  decree-holder.  It  is settled law that the decree holder is entitled to proceed in execution  against   the  judgment-debtor   in  the   manner prescribed  under   Order  21   of  the  CPC.  In  execution proceedings the  judgment- debtor filed an application under Section 151  to adjust  the amounts  lying in the account of Kakkani towards  the debt payable by the judgment debtor. It is now  clear from  the facts that there is an acute dispute and  difference  between  the  entitlements  or  liabilities between Kakkani,  a stranger  to the  decree, and  the Bank. Those liabilities  and adjustments  cannot be adjudicated in the execution  proceedings between  the  appellant  and  the judgment-debtor. A  clever device  was adopted to over reach the appellant  against the  will of  the decree  holder. The third party  rights cannot be projected for determination in an execution  and directions  given on that basis as ordered by  the   High  Courts  are  unthinkable  let  alone  legal. Therefore, the  High Court  has not  only far  exceeded  its revisional power  under 115  CPC but  also  converted  these proceedings into  claims and counter-claims in execution, to which the  second respondent  is not  a party and which even first respondent  is not  entitled to  seek for. The learned single Judge has given directions de hors the execution. The High Court  went ahead  to direct  the  appellant  to  forgo interest under  a decree which came to exist first. The High Court has  acted against  all notions  of law  in execution. Accordingly, we  are of the view that the execution Court as well as  the High  Court in giving directions have committed manifest  and  gravest  error  of  law  in  the  process  of execution levied  under Order  21 CPC  and given directions.

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The orders  are, therefore,  set aside.  The appellant is at liberty to  proceed with  the execution  in accordance  with law. If there are any disputes between the second respondent and the  Bank, it would be open to the parties to have their rights agitated,  if available  in accordance  With law. The learned Judge  is directed  to  complete  the  execution  as expeditiously as possible since it is a long pending case.      The  appeal   is   accordingly   allowed   with   costs throughout.