K. Sitarama Rao vs D. Usha Sundari and Others

V. Bhaskara Rao, J.—This CRP is filed against the order in E.P.No. 135/1987 on the file of Additional Subordinate Judge, West Godavari at Eluru dated 27-1-1997 holding that the decree holder-respondent No. l is at liberty to proceed against the properties of the revision petitioner and directing further steps in that regard.

Respondent No. l obtained a decree in O.S.No. 68/1979 against respondent No. 2-firm and its partners respondent Nos. 3, 4 and revision petitioner for recovery of Rs. 68,164/- with subsequent interest at 15% per annum from the date of suit till realisation and costs. She filed E.P. No. 164/1985 earlier, but the same was dismissed as not pressed. She then filed the present E.P., viz., E.P.No. 135/1987 seeking sale of half of the E.P. schedule property for realisation of the decretal amount. It is stated that the decree was not satisfied and that the E.P. schedule property was already attached before judgment. The E.P. is resisted by the revision petitioner- judgment debtor No. 3. Three grounds are raised in the counter: One objection is that attachment before judgment ordered in I.A.No. 717/1979 in O.S. No. 68/1979 in respect of half share of the minor son late Ravi Kumar of the revision petitioner has been raised in LA.No. 1413/1980 and the other half has been attached in O.S.No. 55/1978 which is the subject matter of A.S. No. 1244/1980 on the file of High Court and an E.P. is filed for sale of that property. Second objection is that an amount of Rs. 36,000/- deposited by respondent No. 4 herein in the Union Bank of India, Eluru, was attached in I. A.No. 717/1979 and respondent No. 1-decree holder received this amount and the same was admitted by her and her husband in their written agreement on 31-1-1984. Third objection is that there was a compromise between the parties and an amount of Rs. 1,05,000/- has been paid in full satisfaction of all the decrees in different suits in different Courts obtained by respondent No. l and her husband apart from the amount of Rs. 36,000/- stated above. It is thus asserted that the decree in O.S.No. 68/1979 is fully satisfied and the E.P. is liable to be dismissed.

The learned Additional Subordinate Judge held enquiry in the E.P. in view of various contentions raised in the counter filed by the revision petitioner. Respondent No. l-decree holder examined herself as PW-1 and she also examined her husband as PW-2 while revision petitioner examined himself as RW-1 and son of respondent No. 4 is examined as RW-2. Exs.B-1 to B-5 have been marked on their behalf. After close scrutiny of the oral and documentary evidence adduced by the parties, he repelled all the contentions raised by the revision petitioner and directed further steps in the E.P. Aggrieved by the above order, the revision petitioner-judgment debtor No. 3 came in revision to this Court.

Sri A. Ramalingeswara Rao, learned Counsel for the revision petitioner basing his case on Ex.B-1 agreement, dated 12-4-1985 strenuously contended that all the decrees including the one on hand have been fully satisfied and an amount of Rs. 1,05,000/- has been paid to respondent No. l and her husband besides Rs. 36,000/- and therefore, the E.P. is misconceived. He relied on a judgment of this Court in Buchi Reddi v. Savitramma 1969 (1) An.W.R. 202 and contended that there are no bona fides in respondent No. l inasmuch as the earlier payments and agreement Ex.B-1 have been suppressed and hence the same is liable to be dismissed. He urged that the impugned order may be set aside and the E.P. may be dismissed.

Sri T. Veerabhadrayya, learned Counsel for respondent No. l-decree holder on the other hand contended that the so-called payments set up by the revision petitioner have not been recorded or certified under Order XXI Rule 2 of the CPC and hence the same are fit to be ignored as held in Sultana Begum Vs. Prem Chand Jain, . Accordingly he contended that the impugned order does not suffer from any error of jurisdiction.

Having considered the rival contentions and after perusing the judgment cited supra (1) and (2) and after going through the evidence on record, I am satisfied that the payment of Rs. 1,05,000/- out of Court which has not been recorded or certified under Order XXI Rule 2 CPC is fit to be ignored. In the judgment cited supra (2), the Supreme Court held -

"Interpreting the provisions of Section 47 and Order XXI Rule 2 in the light of the above principles, there does appear to be any antithesis between the two provisions. Section 47 deals with the power of the Court executing the decree while Order XXI, Rule 2 deals with the procedure which a Court whose duty it is to execute the decree has to follow in a limited class of cases relating to the discharge or satisfaction of decrees either by payment of money (payable under the decree) out of Court or adjustment in any other manner by consensual arrangement. The general power of deciding questions relating to execution, discharge or satisfaction of decree u/s 47 can thus be exercised subject to the restriction placed by Order XXI, Rule 2 including sub-rule (3) which contain special provisions regulating payment of money due under a decree outside the Court or in any other manner adjusting the decree. The general provision u/s 47 has, therefore, to yield to that extent to the special provisions contained in Order XXI, Rule 2 which have been enacted to prevent a judgment-debtor from setting up false, or cooked up pleas so as to prolong or delay the execution proceedings. Thus, though it is open to the parties to adjust or compromise their rights under the decree but if it amounts to adjustment of decree, it must be reported to the Court whose duty it is to execute the decree so that that Court may record or certify the same. If it is not done, the Court before whom the execution proceedings are initiated will proceed to execute the decree."

Admittedly Ex.B-1 has not seen the light of the day till it is filed in these proceedings and the payment thereunder has not been certified by the Court below. Following the ratio in the judgment cited supra (2), the above payment has to be ignored and the lower Court has, therefore rightly held that the same is fit to be ignored.

As regards the payment of Rs. 36,000/- which was deposited in Union Bank of India, the lower Court held that no evidence has been placed on record to show that respondent No. l-decree holder had withdrawn that amount. It is true that the relevant record of the Court below could have been called for or certified copies could have been filed to show that respondent No. 1- decree holder had withdrawn the above amount by filing any cheque petition, but it is merely asserted in the counter and in oral evidence that the above amount has been withdrawn. In the absence of record, the above plea cannot be countenanced. The learned Additional Subordinate Judge has also recorded similar reasons for not accepting this contention and the same is fit to be confirmed. I also do not find any substance in the contention of Sri Ramalingeswara Rao that there are no bona fides in the E.P. If this plea springs from Ex.B-1 agreement, it has to be rejected for the simple reason that the law enjoins that all payments out of Court shall be brought to the notice of the Court which passed the decree and they have to be certified by that Court under Order XXI Rule 2 CPC. Nothing prevented the judgment-debtors including the revision petitioner herein from approaching the Court below and seek necessary certification and having failed in his duty, the revision petitioner cannot turn round and say that respondent No. l has committed any wrong. I do not see any mala fides in this case having regard to the well established interpretation of the law on the subject. On an overall consideration of the available material, I am unable to find any merit in this revision petition and hence the same is liable to be dismissed.

In the result, the CRP is dismissed, but without costs.