TMI Blog2016 (4) TMI 1407X X X X Extracts X X X X X X X X Extracts X X X X ..... hether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and the results Thus, it would indicate that Order 21 Rule 11 CPC does not bar simultaneous executions. However, in case of two execution petitions being filed namely, (1) for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor, then in such a situation, Executing Court may refuse execution against the person and property of said judgment debtor at the same time as indicated in Order 21 Rule 30 CPC. A decree holder would be entitled to file two execution petitions for realizing or recovering the decretal amount due from two judgment debtors, when judgment and decree passed against them is joint and several. Simultaneous execution petitions having been filed by decree holder for realization of amounts due from the Judgment debtors which decree is joint and several executing Court was not justified in dismissing the execution petitions - Petition allowed. - W.R Nos. 32399 & 32400/2015 in W.P Nos. 32401-405/2015. - - - Dated:- 29-4-2016 - Aravind Kumar, J. For Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its prayer as against jointly and severally liability fixed under the decrees, though it has been held that two execution petitions i.e, Execution Petition Nos. 1267/2014 and 1274/2014 are maintainable. RE: W.P Nos. 32400 32405/2015: 3. Decree holder under these two writ petitions having obtained a Judgment and decree against respondents - Judgment debtors on 13.12.2013 by High Court of Justice, Queen's Bench Division, Commercial Court, Royal Court of Justice have filed two execution petitions namely Execution No. 1268/2014 and Execution Petition No. 1276/2014 against Kingfisher Airlines Limited and United Breweries Holdings Limited before City Civil Court, Bengaluru. The original judgment and decrees came to be modified during the pendency of execution petitions. Hence, applications for amendment came to be filed in these two execution petitions seeking for amendment namely, to amend the amounts mentioned in the respective executive petitions. Applications for amendment of executive petitions came to be opposed by both the judgment debtors. At the time of hearing of these amendment applications, Executing Court suo moto raised the issue of maintainability of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled two execution petitions i.e, against the principal borrower and guarantor separately and as such decree holder would be recovering twice the decretal amount and as such decree holder cannot proceed against both the judgment debtors simultaneously and if permitted to continue there is chance of misuse and it may not be possible for the Executing Court to ascertain as to how much amount has been paid to the decree holder if two petitions are continued. By recording such finding, execution petitions filed by decree holders in Execution Petition Nos. 1272/2014,1273/2014 and 1275/2014 came to be dismissed as not maintainable. 5. It is the contention of Sri. Kevic Setalvad, Learned Senior Counsel appearing for petitioner/decree holder that judgment of Apex Court in S.P Chengalvaraya Naidu (Dead) Bylrs v. Jagannath (Dead) By Lrs . 1994 1 SCC 1; 1994 1 SCC 1, has been erroneously held as applicable to the facts on hand, inasmuch as, in the said case respondent therein had obtained a preliminary decree from the Court without disclosing certain vital facts to the Court which the respondent was bound to disclose. Whereas such factual aspect was not present in the instant case and it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not chosen to follow the Judgment of Division Bench on the premise that it was rendered long ago and infact said Judgment has been subsequently followed in the case of Venkateshwara Rao v. Margadarshi Chit Funds Ltd.,5 and as such the Division Bench Judgment has not lost its precedential value. He would also further contend that Executing Court erred in relying upon the Judgment of Madras High Court in the case of Dr. Vimalaand Sriram Chits and Investments Pvt. Ltd.6, though is not cited by counsel appearing for respondent or any other party and without affording an opportunity to distinguish said Judgment on facts since it does not lay down the correct law. He would further submit that principles of natural justice was given a go by. Hence, on this ground also he prays for setting aside the impugned order. He would further contend that Executing Court committed an error in arriving at a conclusion that provisions of Order 21 Rule 21 does not contemplate to proceed with separate execution petitions against two Judgment debtors independently. On the other hand, plain reading of Order 21 Rule 21 CPC does not indicate that the decree holder is precluded from proceeding against diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) by the decree holder is an indicator to the fact that decree holder had suppressed filing of simultaneous execution petitions against principal borrower and guarantor so as to have unjust enrichment and as such there is no error committed by the Executing Court in passing the impugned orders and as such he prays for dismissal of the writ petitions. In support of his submission he has relied upon the following Judgments: (i) Radhey Shyam v. Chhabi Nath . 2015 5 SCC 423. (ii) Surya Deva Rai v. Ram Chander Rai . 2003 6 SCC 675. (iii) Mr. D.H.M Framjee v. The Eastern Union Bank Ltd., Chittagong . AIR 1951 P H 371. (iv) S.P Chengalvaraya Naidu v. Jagannath (supra) (v) Badami v. Bhali . 2012 11 SCC 574 8. Sri S.V Rajesh appearing for respondents in W.P No. 32399/2015 and W.P No. 32400/2015 would support the impugned orders and pray for dismissal of the writ petitions. 9. Having heard the learned advocates appearing for parties and on perusal of the records it would indicate the decree holder in Execution Petitions Nos. 1267, 1268, 1274 1276/2014 are same and judgment debtors in Execution Petitions Nos. 1267/2014 and 1268/2014 are also same (Kingfisher Airlines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 32404/2015. 12. There cannot be any dispute with regard to exercise of supervisory jurisdiction by this Court under Article 227 of Constitution of India. Article 227 confers every High Court power of superintendence over all Courts and Tribunals through out territories in relation to which it exercises jurisdiction. 13. Where the Court assumes a jurisdiction which it does not have and failed to exercise jurisdiction which it does have and available jurisdiction being exercised in a manner which has occasioned injustice or failure of justice would be the ground on which this Court can exercise power under Article 227 of Constitution of India. It has been held by Apex Court in the case of Radhey Shyam v. Chhabinath (supra) that despite curtailment of revisional jurisdiction under Section 115 CPC by Act No. 46 of 1999, the jurisdiction of High Court under Article 227 remains unaffected. It has been held as under: 25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other Courts having l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultaneously. In conclusion it has been held that two execution petitions can be filed by a decree holder and if decree holder chooses to recover such amounts simultaneously from two judgment debtors the only course which requires to be adopted by such decree holder is to disclose the amounts having recovered in either of the petitions, so as to ensure that decree holder would not have unjust enrichment as otherwise such decree holder would be recovering twice the decretal amount or the amount to which decree holder would be entitled to. It has been held by Division Bench to the following effect: The argument proceeds on the basis that, as regards the sum of ₹ 14,619-13-7, there cannot be two E.Ps simultaneously pending against the two defendants. We are unable to accede to this contention. For the decree-holder is entitled under law to proceed simultaneously against the different judgment-debtors in execution of his decree and even the specific permission of the Court is not required for such a course. There is nothing in the Civil Procedure Code or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical view of the matter, realise the undeniable fact that he may meet a stiff contest in that petition and that the amount of effort, ingenuity and tactics which are put forward by the judgment-debtors in that petition can be of large magnitude and can deprive him of realisation of the decree in full or in part. It is only quite common that not only in suits but also in execution petitions all possible lines of fact and law are explored by parties concerned to gain success for themselves at the cost of the opposite party. Consequently, if the law were to force a decree-holder to treat an execution petition which he has filed for a certain amount as equivalent to having realised the amount, it would be like forcing him to count the chickens before they are hatched. We find that the contentions raised on behalf of the appellant are untenable and agree with the conclusion reached by the lower Court. (emphasis supplied by me) 16. There cannot be any dispute to the proposition that the liability of the surety with that of principal borrower being co-extensive and they are separate liabilities although arising out of the same transaction and not withstanding that they stem f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench of Madras High Court as well as Division Bench of Andhra Pradesh High Court in Bethia Venkanna's case referred to supra this Court is of the considered view that decree holder would be entitled under law to proceed against different Judgment debtors simultaneously and in the instant case Judgment debtors being separate and decrees being separate particularly in W.P.32399/2015, W.P.32400/2015, W.P 32402/2015, W.P 32403/2015 and W.P 32405/2015 two execution petitions filed by decree holder will necessarily have to be held as maintainable which is also the finding given by Executing Court in Execution Petitions Nos. 1267, 1268, 1274 1276/2014. However direction issued to the decree holder to amend the execution petitions so that the amount claimed in the simultaneous petitions filed against principal borrower and guarantor would result in claim being halved and same is impermissible. In the background of undertaking given by Learned Senior Counsel appearing for decree holder on 07.04.2016 which is to the effect that in the event of decree holders were to realise any amounts from either of the Judgment debtors amounts claimed in respective petitions would be given se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his decree as already discussed herein above. There is nothing in the Code of Civil Procedure or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously. The rules of procedure are hand made of justice. Order 21 Rule 11 (2)(e) CPC mandates that the decree holder has to indicate in the execution petition as to whether any, and (if any), what payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree and not the amount for which the decree holder has filed any other execution petition which is pending. However, under Order 21 Rule 2(f) CPC, the decree holder has to state whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and the results Thus, it would indicate that Order 21 Rule 11 CPC does not bar simultaneous executions. However, in case of two execution petitions being filed namely, (1) for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor, then in such a situation, Executing Court may refuse execu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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