Bhagaraj Singh vs C.K. Xavier

K.T. Thomas, J.—When a decree holder filed execution petition, the judgment debtor raised a contention that the whole decree has been adjusted and there is no decree alive to be executed. That objection was repelled by the court below and hence the judgment debtor has filed this Civil Revision Petition. The decree was passed on 29-10-1979 for a sum of Rs. 24.100/- with interest and costs. The execution petition has been filed on 17-11-1981. The contention of the judgment debtor in his objection is that he had paid a sum of Rs. 18,000/- on 30-7-1980, which was accepted by the decree holder in full satisfaction of the decree. The judgment debtor produced a receipt showing that the decree holder received a sum of Rs. 18,000/- on 30-7-1980. The decree holder disputes the genuineness of the receipt. The learned Sub Judge who overruled the objection of the judgment debtor, has observed that "this payment has not been recorded or certified by any court and so this payment cannot be taken into consideration,"

The learned counsel for the petitioner (judgment debtor) contends that when a payment or adjustment is proved by documentary evidence, the court has to recognise it, in view of Rule 2A of Order XXL The said Rule has been inserted in the Code Civil Procedure by Act 104 of 1976. It reads thus-

2 A "No payment or adjustment shall be recorded at the instance of the judgment-debtor unless -

a) the payment is made in the manner provided in rule 1 or;

b) the payment or adjustment is proved by documentary evidence; or

c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub rule (2) of rule 1, or before the Court.

Order XXI Rule 1 provides that any money payable under a decree shall be paid in any of the modes enumerated thereunder. Clause (b) of the Sub Rule says that the payment, when made out of court, can be "by any other mode wherein payment is evidenced in writing". Rule 2 of Order XXI deals with the procedure to be followed for the payment or adjustment to be recorded as certified. Sub Rule (1) enjoins upon the decree holder to certify such payment or adjustment to the court, when the whole or any par'' of the decree is satisfied Sub Rule (2) enables the judgment debtor to inform the court of such payment or adjustment and apply to the court to issue a notice to the decree holder to show cause, why such payment or adjustment should not be recorded as certified. Rule 2A is placed thereafter. From the scheme and setting of Order XXf Rules 1, 2 and 2A, it is evident that Rule 2A is intended to operate as a proviso to Rule 2. Recording of the payment of adjustment has to be made under Rule 2 and in doing so, the court is subjected to the restrictions provided in Rule 2A. The contention of the learned counsel for the petitioner that Rule 2A is inserted for the purpose of enabling a judgment debtor to prove payment or adjustment of a decree, irrespective of whether such payment or adjustment has been recorded or not, does not appear to be sound. The unsoundness of that argument is made further clear by reading sub Rule (3), which is quoted:-

A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any court executing the decree

Certification or recording of a payment or adjustment is envisaged in Rule2. where a special procedure is prescribed to be followed either by the decree holder or by the judgment debtor. Rule 2 A does not contain the procedure for recording or certification. It only contains the restrictions under which the court has to act while recording the payment or adjustment.

Sri Narendra Kumar, the learned counsel for the respondent-decree holder has referred me to three decisions in support of his contention that the judgment debtor is bound to apply to the court under Order XXI Rule 2(2) to have the payment or adjustment recorded as certified; Humayun Properties v. Ferrazzinis Ltd (AIR 1963 Calcutta, 473), S. Jagnani v. Sunder Singh (AIR 1974 Patna, 138) and M. P. Shreevastava v. Veena (AIR 1967 S. C. 1193). It is immaterial, according to those decisions that an execution application is not pending for the judgment debtor to make an application as aforesaid In S. Jagnanps case, the relevant observation of the Patna High Court reads thus.- "There is no doubt that the provisions of Order XXI Rule 2 have to be followed by the judgment debtor immediately rather he has to do it, if there is any adjustment, immediately after the passing of the judgment and even before the preparation of the decree. He has not to wait beyond the period of limitation and certainly not until the filing of an execution proceeding which might defeat his right to apply to the Court on account of the delay. As once the time expires, the Court becomes powerless to take cognizance of any uncertified payment or adjustment at the instance of the judgment debtor". The main point considered in the Supreme Court decision cited supra is the power of the execution court under Sec. 47 vis-a-vis Order XXI Rule 2 of the Civil Procedure Code. In Paragraph 6 of the decision. Their Lordships observed as follows:-

But O.21 R.2 prescribes a special procedure for recording adjustment of a decree, or for recording payment of money paid out of Court under any decree. However the plenary power conferred by S. 47 C. P. Code upon the Court executing the decree to determine all questions arising between the parties to the suit in which the decree was passed, and relating to execution, discharge or satisfaction of the decree, is not thereby affected. Whereas O.21 R.2 deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement, S. 47 C. P. Code deals with the power of the Court executing the decree.

It is contended by the learned counsel for the respondent that the judgment debtor should have filed the application for certification or recording within 30 days from the date of the alleged payment as per Article 125 of the Limitation Act. He further contended that since the period has already expired, the judgment debtor is debarred from seeking any further remedy to have the payment or adjustment, if at all genuine, certified or recorded. The judgment debtor may have to resort to other remedies, if available, in the above matter. The impugned order cannot be interfered with and therefore the C.R.P is dismissed, without any order as to costs.