Smt.Vardhaman Industries Engg v. Kolhapur Udyam Co-op. Society

Mr.G.R. Rege i/by Mrs.S.A. Mudbidri, Advocate for Appellant. Mr.V.B. Naik with Ms.Deepa Ahuja, Advocate for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Dated : 16th September, 2009. P.C.

This Second Appeal arises out of execution proceedings and was admitted on the following substantial question of law as stated at ground 6 of the appeal memo.

6) Having deposited the full and entire decretal amount in capacity as legal representative of the deceased Judgment debtor, the Courts below ought to have treated the decree as satisfied and execution for recovery of possession ought to have been dropped.

This ground of appeal has not been correctly formulated because the appellant has never claimed to be legal representative of respondent no.2. In fact, he has specifically 2 contended in his applications that he is neither the judgment debtor nor agent or representative of the judgment debtor. Therefore, the question to be considered is whether the payment of decretal amount by the appellant can be treated as full satisfaction of the decree.

The facts leading to the Second Appeal are as follows : Respondent no.1- Society had given on hire the suit premises to respondent no.2, since deceased. As per the hire purchase agreement, on failure of respondent no.2 in paying the amount agreed under the agreement and the interest thereon, respondent no.1 was entitled to recover not only the amount under the agreement but also possession of the premises. The suit came to be filed by respondent No.1 against respondent no. 2 in the Court of Deputy Registrar, Co-operative Society, at Kolhapur for hire purchase amount and for possession of the premises. The suit was disposed off by conditional decree allowing installments to respondent no.2 in making the payment. The condition attached to the decree was that in case of failure to pay two successive installments, respondent no.1 was at liberty to recover possession of the premises from respondent no.2.

Mr.Rege, the learned Counsel for the appellant submits that considering the fact that the appellant was occupying the premises for a substantial time and fact that the appellant had deposited the entire decretal amount, the Court could have treated the decree as satisfied and allowed the appellant to retain possession of the premises. Respondent no.1- Society, however, has a strong objection to such satisfaction of the decree considering the fact that the decretal amount came to be deposited in the Court at a very late stage by which time the value of the suit premises had increased multifold. The deposit of the decretal amount by the appellant cannot be said to be for and on behalf of the judgment debtor- respondent no. 2, who is since deceased. This is because the appellant in his application before the executing Court has claimed to have an independent right to the disputed premises. He is neither the judgment debtor nor agent nor representative of the judgment debtor. He being a third party to the decree, the Courts below have rightly held that he cannot claim satisfaction of the decree unless it is consented to by the decree holder. In the 5 circumstances, the substantial question of law framed at the time of admission is answered in the negative.