Devinder Kumar vs S.Chandan

V. K. Jhanji, J.—This revision petition arises out of an order passed by the executing Court, whereby Objections of the judgmentdebtor filed under Section 47 of the Code of Civil Procedure were accepted and in consequence thereof, execution application was dismissed.

In brief, the facts are that a decree for possession in respect of 87 kanals 17 marlas was passed in favour of one Davinder Kumar and against four persons namely Ratti Ram, Lakhi Ram, Chhota Ram and Chandan. Against that decree, an appeal was filed before the District Judge, where the matter was compromised. As per the compromise, decree was passed for the land measuring 28 kanals 9 marlas instead of 87 kanals 17 marlas. The order in the appeal, on the basis of compromise, was passed on 9.1.1973. On 29.7.1976, the decreeholder filed an execution application against Chandan, who then in response to the notice filed Objections. His main objection was that he was required to pay Rs. 12,000/ to the decreeholder, which he paid in instalments. He further stated that the decreeholder being a litigant minded person never issued any receipt in token of receipt of the amount. The decreeholder denied the averments made in the objection petition. On the pleadings of the parties, the executing Court framed the following issues :

(1) Whether the decree has been satisfied as alleged in the objection petition ? O.P. Petitioner

(2) Whether a copy of the decreesheet was not attached with the execution; If so, what is its effect ?

(3) Relief.

An additional issue was also framed on 16.4.1981, which is :

``1(a) Whether the execution is not maintainable on the ground that all the J.Ds. have not been made parties.''''

In support of their contentions, the decreeholder as well as the judgment debtor examined some witnesses. On the appreciation of evidence brought on record, the trial Court found that the decreeholder after the decision of the appeal, compromised the matter with the judgmentdebtor, and in that compromise, the judgmentdebtor paid the amount of his share and, therefore, decree with regard to that share stands satisfied. The executing Court also found that the decreeholder sought to execute the decree only with respect to share of Chandan judgmentdebtor on the plea that the other judgmentdebtors have satisfied their part of the decree. In view of this finding, objection petition was accepted and consequently, execution application was ordered to be dismissed. It is this order which is being challenged by the decreeholder in the present revision petition.

Mr. S. C. Sibal, Sr. Advocate, appearing for the petitioner, contended that the executing Court was not justified in accepting the oral testimony of the witnesses with regard to payment of the amount. According to him, under subrule (3) of Rule 2 of Order 21 of the Code of Civil Procedure, the payment which has not been certified or recorded as provided under subrule (2A), cannot be recognised by any Court executing the decree. He also referred to the statement of the witnesses to show that the payment was not made by the judgmentdebtor.

In reply, the learned counsel for the judgmentdebtor contended that the decree has been satisfied on payment of Rs. 12,000/ and, thus, the impugned order requires no interference by this Court.

In order to appreciate the arguments of Mr. Sibal, it is necessary to notice the provisions of subrules (1), (2), (2A) and (r) of Rule 2 of Order 21 of the Code of Civil Procedure :

Rule2 : Payment out of Court to decreeholder

(1) Where any money payable under a decree of any kind is paid out of Court, (or the decree of any kind is otherwise adjusted) in whole or in part to the satisfaction of the decreeholder, the decreeholder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgmentdebtor (or any person who has become surety for the judgmentdebtor) also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decreeholder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

(2A). No payment or adjustment shall be recorded at the instance of the judgmentdebtor 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 decreeholder in his reply to the notice given under subrule (2) of Rule 1, or before the Court.)

(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

The abovementioned rule provides the mode and the manner in which the executing Court is required to record payment or adjustment made outside the Court. Subrule (1) contemplates certification by the decreeholder and recording by the Court of the payment or adjustment; Subrule (2) contemplates application by the judgmentdebtor and also notice to the decreeholder to show cause as to why such payment or adjustment be not recorded as certified. On failure of the decreeholder to showcause, the Court is to record certification. Thus, recording of payment or adjustment has to be made under subrules (1) and (2). Subrule (2A) which was inserted by amendment Act of 1976, prevents the Court from recording of any payment or adjustment which has not been made as provided under this subrule. Thus, if a payment or adjustment arrived at outside the Court is not certified by the decreeholder or an application is not made by the judgmentdebtor, then under subrule (3), such payment or adjustment cannot be pleaded as defence in execution of the decree because such payment cannot be recognised by the Court. However, in the State of Punjab, by virtue of Section 36 of the Punjab Relief of Indebtedness Act, 1934, subrule (3) has been omitted. The consequence of omission of subrule (3) was considered by this Court in a judgment reported as Bholu Ram and others v. Kanhya s/o Mard and others, AIR 1963 P&H 133, in which it was held that ``in view of subrule (3) of Rule 2 of Order 21, if payment out of Court is not certified by the decreeholder nor any application is made by the judgmentdebtor under subrule (2) within 90 days as provided in Article 174 of the Limitation Act, such payment cannot be pleaded as a defence in execution of decree, because such payment cannot be recognised by the Court. In the State of Punjab, however, by virtue of Section 36 of the Punjab Relief of Indebtedness Act, 1934, subrule (3) of this rule has been repealed. The result, therefore, is that irrespective of the fact whether a payment or adjustment has been certified either at the instance of the decreeholder under subrule (1) or within 90 days of the adjustment at the instance of the judgmentdebtor under subrule (2), such payment can be pleaded as a defence if the decreeholder takes out an execution of the decree''''. Thus, as a result of omission of subrule (3) of Rule 2 of Order 21 of the Code of Civil Procedure, in execution filed by the decreeholder, the judgmentdebtor notwithstanding that he did not move the Court under subrule (2) for the adjustment being certified or did not make payment or got the decree adjusted in the manner provided under subrule (2 A), is entitled to take up the plea that execution should not be allowed because of payment or adjustment. In this view of the matter, the contention of Mr. Sibal that payment outside Court cannot be recognised, cannot be accepted. As regards the second contention of Mr. Sibal, suffice it to say, the executing Court has on appreciation of the oral evidence, found that the decree stands satisfied on account of payment outside Court, and this being a pure finding of fact, it is not open for this Court sitting in revision to take a contrary view from the one taken by the executing Court.

For the reasons recorded above, I find no merit in the revision petition and the same is dismissed as such. No costs.