1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the applicant herein – original plaintiff – judgement creditor to quash and set aside the impugned order dated 15/06/2001 passed by learned Joint Civil Judge (S.D), Bhavnagar i.e. learned Executing Court in Execution Petition No.38 of 1989, by which, learned Executing Court has disposed of the said Execution Petition considering the report made by bailiff and endorsement that the original defendant – judgement debtor has agreed to pay Rs.1,500/- at the time of execution of the Jangam warrant and has agreed to pay further a sum of Rs.10,000/- on the subsequent date.
2. It appears that there was judgement and decree passed by learned Civil Court against the respondents herein - original defendants for a sum of Rs.1,87,382.34 ps., which was sought to be executed by the applicant herein – original judgement creditor by way of filing Execution Petition No.38 of 1989. It appears that learned Executing Court has issued Jangam Warrant and the bailiff went to execute the same and in fact Jangam warrant was served upon respondent No.1 herein on 22/05/2001 and at that time respondent No.1 has agreed to pay Rs.1,500/- on the spot and has agreed to pay a sum of Rs.10,000/- on 01/06/2001 to avoid further consequences of the service of Jangam Warrant. The bailiff made report on 01/06/2001 pointing out the aforesaid facts and unfortunately though the decree was not satisfied at all, learned Executing Court has dismissed the aforesaid Execution Petition as entire decree has been satisfied.
3. Being aggrieved by and dissatisfied with the impugned order passed by learned Executing Court in disposing of the aforesaid Execution Petition, the applicant herein - judgement creditor has preferred the present Civil Revision Application u/s.115 of the Code of Civil Procedure.
4. Mr.R.D.Dave, learned advocate appearing on behalf of the applicant herein - judgement creditor has vehemently submitted that the manner in which learned Executing Court has disposed of the Execution Petition cannot be sustained. Unless and until decree is satisfied and entire decreetal amount has been paid and any application is submitted with respect to certification of any amount paid under the execution under Order 21 Rule 2 of the Code of Civil Procedure, learned Executing Court could not have disposed of the aforesaid Execution Petition. It is submitted that the bailiff reported that at the time of service of Jangam Warrant, respondent No.1 herein – original defendant has agreed to pay Rs.1500/- on the spot and further agreed to pay Rs.10,000/- on 01/06/2001 so as to avoid further consequences of service of Jangam warrant, it does not mean that entire decreetal amount has been paid and decree has been satisfied. Therefore, it is submitted that learned Executing Court has committed an error in disposing of the aforesaid Execution Petition.
5. Mr.P.N.Bavishi, learned advocate appearing on behalf of respondent No.1 has chosen to remain absent.
6. Considering the fact that the suit is of the year 1982 and the decree has been passed in the year 1989, which is sought to be executed, the present Civil Revision Application is heard ex-parte.
7. Having heard Mr.R.D.Dave, learned advocate appearing on behalf of the applicant herein – judgement creditor and impugned order dated 15/06/2001 passed by learned Executing Court disposing of the Execution Petition and even report submitted by the bailiff dated 01/06/2001, it appears to the Court that the manner in which learned Executing Court has disposed of the execution petition cannot be sustained. Considering Order 21 of the Code of Civil Procedure, it cannot be disputed that unless and until decree is satisfied and/or entire decreetal amount has been paid and/or the amount, if any paid under the execution is certified by the learned Executing Court under Order 21 Rule 2 of the Code of Civil Procedure, learned Executing Court is not required to dispose of the aforesaid Execution Petition. Learned Executing Court has materially erred in disposing of the Execution Petition and learned Executing Court is further required to proceed further with the execution petition till decree is satisfied and entire decreetal amount is paid. Under the circumstances, the impugned order passed by learned Executing Court deserves to be quashed and set aside and learned Executing Court is required to be directed to proceed further with the aforesaid Execution Petition and to decide and dispose of the said Execution Petition in accordance with law and on merits, after following due procedure as required, at the earliest.
8. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds and the impugned order dated 15/06/2001 passed by learned Joint Civil Judge (S.D), Bhavnagar i.e. Executing Court in Execution Petition No.38 of 1989 is hereby quashed and set aside and it is directed to restore the Execution Petition No.38 of 1989 on file of the learned Executing Court and learned Executing Court is hereby directed to proceed further with the said Execution Petition No.38 of 1989 in accordance with law and on merits, within a period of six months from the date of receipt of the copy of the present order. Rule is made absolute to the aforesaid extent. No costs.
[M.R.SHAH,J] *dipti