2003 PLP 259 (CLD)

Through the filing of the present appeal, the appellant/decree‑holder has called in question order dated 18‑6‑2001, whereby the learned Banking Court directed the appellant to pay an amount of Rs.1, 00, 762 to the respondents/judgment‑debtors.

2. Facts, leading to the filing of the present appeal are that the appellant filed a suit for the recovery of Rs.30,68,262 with costs, against the respondents, wherein ultimately a consent decree, after the recording the statements of the learned counsel of the parties, for the recovery of Rs.18,28,475 with costs was passed by the learned Banking Court vide judgment and decree dated 22‑2‑1999. It appears from the record that the respondents did not comply with the terms of the said consent decree, which resulted in the filing of the execution petition by the appellant. During the execution proceedings, the respondents raised an objection, claiming the refund of Rs.74,625, which claim was although refused by the appellant by filing the reply to the said application, yet the learned Banking Court while entertaining the said claim, ordered the appellant to pay an amount of Rs.1,00,762 to the respondents vide order dated 18‑6‑2001, hence, the present appeal.

3. Learned counsel for the appellant has contended that although the appellant filed a suit for the recovery of Ra. 30,68,262, yet a consent decree was passed for the recovery of Rs.18,28,475, out of which a sum of Rs.83,85: is still to be paid by the respondents. He has further contended that the executing Court has in fact gone behind the decree, which is not permissible under the law and it is under an legal obligation to execute the decree as it is. Conversely, the learned counsel for the respondents, while supporting the impugned order, has submitted that the respondents have overpaid the amount, thus, they are entitled for its refund, and that an amount of Rs.74,625, debited as supplied tax in the accounts of the respondents cannot be recovered.

4. Upon the examination of the record of the case, we find that on 22‑2‑1999, a consent decree for the amount of Rs.18,28,475, with costs was passed against the respondents favouring the appellant/decree‑holder. It would be appropriate to reproduce the terms of decree which are as under:‑‑ "It is ordered that I decree the suit on the statements of the learned counsel for the recovery of Rs.18,28,475 with costs against the defendants jointly and severally with the direction that one -fourth (1/4th) of the total amount in the form of first instalment would be paid within one month from today and the remaining amount would be paid through equal quarterly instalments. The whole of the amount, thus would be paid within one year from today. After the payment of whole of the amount, the defendants would become owners of the machines. If the decretal amount is not paid as directed above then the same would be recovered through the process of the Court, i.e. by putting the decree‑holder‑bank into the possession of the leased machinery at the cost of judgment‑debtors as well as by the sale of the properties and assets of the defendants and also from their persons as permissible in law." It flows from the above that a consent decree of Rs.18,28,475 with costs was passed against the respondents. After adding the costs of Rs.31,857 the total decretal amount recoverable from the respondents, thus, comes to Rs.18,60,

332. Admittedly, after the passing of the decree, the respondents have only paid a sum of Rs.17,76,475 to the appellant‑Bank ‑and thus, an amount of Rs.83,857 is still payable, which has not yet been paid by the respondents, who have in turn claimed a refund of Rs.74,625, which has been allowed by the learned Banking Court together with mark‑up. Interestingly, in the impugned order we find that the respondents/judgment debtors have admitted the said liability, as the learned Court has observed that "the judgment‑debtors "have accepted the liability". The parties are not at variance on the aforenoted facts.

5. So far as the contention of the learned counsel for the respondents regarding the refund of Rs.74,625 is concerned, the same, on the face of it, is misconceived and misdirected, as the said entry is stated to be a debit entry made on 25‑10‑1992, while the consent decree was passed on 22‑2‑1999. There is no cavil to the proposition that executing Court cannot go behind the decree and is precluded under the facts and circumstances of the case, to take notice of any entry in the statement of accounts prior to the passing of the decree, as the entire matter stood clinched with the passing of the consent decree. Whatever amounts, the parties exchanged between themselves before 221‑2‑1999, were finalized with the passing of the consent decree, wherein the claim made by the appellant in the suit for the recovery of Rs.30,68,262 seas reduced to Rs.18,28,475 and the said amount was decreed by the learned Banking Court with costs with the consent of the respondents. At this stage, the respondents are estopped, under the law, from agitating that any amount prior to the passing of the decree is not due against them. After the passing of the consent decree, which is not even appealable under section 96(3), Civil procedure Code, which has attained finality, nobody can challenge the terms of the decree and both the parties are Hound to execute the same as it is. Undoubtedly, the learned Banking Court is under legal obligation to execute the decree as it is and cannot go behind the decree. The learned Judge Banking Court has to see only as to whether the consent decree has been satisfied or not and how much amount remains to be paid by the judgment‑debtors. The executing Court is concerned only with the payments made after the passing of the decree and after deduction of the said amounts, the learned Banking Court had to execute the remaining decree. As noted above, after the payment of Rs.17,76,475 as admitted by both the parties, now only out sum of Rs.83,857 remains payable by the respondents out of the consent decree, mentioned above, and thus, the learned executing Court is bound to execute the consent decree, now, upto the extent of Rs.83,857 only.

6. Upon the examination of the impugned order, we find that the same was passed in complete oblivion of the facts of the case and law on the subject thus, we are inclined to set it aside, being not sustainable in law.

7. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 18‑6‑2001 is set aside with no order as to costs. The result would be that now the learned executing Court shall execute the consent decree dated 22‑2‑1999 only t6 the extent of Rs.83,

857. S.A.K./P‑114/L Appeal allowed.