Nandagopal Gounder vs Kannan and Another

This revision petition is directed by the judgment debtor against the order passed in E. A. 913 of 1984 in O.S. 589 of 1980 on the file of the

District Munsif, Villupuram.

The second respondent herein obtained two decrees-against the petitioner herein in O.S. 287 of 1979 and 589 of 1980 on the file of the District

Munsif, Villupuram. He assigned the said two decrees in favour of the first respondent herein for valuable consideration. On the basis of the

assignment, the respondent filed E.A. 913 of 1984 in O.S. 589 of 1980 under Order 21, Rule 16 C.P.C. praying for the recognition of the

assignment of the decree O.S. 589 of 1980 in his favour and to permit the execution of the decree assigned. The petitioner herein, who is the

judgment-debtor, resisted the application on the ground that he has paid a sum of Rs. 2750 on 5-11-1983 in full satisfaction of the said two

decrees to the second respondent and obtained a receipt evidencing such payment. Therefore he contended that the assignment in favour of the

first respondent is not true and valid and since the second respondent had already received the amount due under the two decrees, the assignment

is not binding on him. The learned District Munsif, Villupuram overruled the objections raised by the petitioner and allowed the application.

Aggrieved against the said order, the petitioner-judgment, debtor has filed the present revision.

Mr. V. Prabhakar, learned counsel for the petitioner, submit that under Ex. B- 1, the entire amount had been paid and there was no amount due

under the two decrees obtained by the second respondent against the petitioner. Learned counsel for the petitioner further submitted that after

having received the amount under Ex. B 1, the second respondent has fraudulently assigned the decree in favour of the first respondent. He also

relies on the finding of the learned District Munsif, to the effect that the payment under Ex. B 1, has been established. On that basis, the learned

counsel for the petitioner contends that even though the said payment was not certified, the court is bound to take into consideration of that

payment, which has been proved beyond all reasonable doubt. According to him, the provisions contained in 0. 21, R. 2, C.P.C. cannot be

construed to the effect that such a payment cannot be taken into account even in a case where the payment has been proved beyond all reasonable

doubt. The learned counsel further contended that when the rules cast a duty on the decree-holder to intimate the Court about the receipt of

payment and get it certified, the decree-holder ought to have brought it to the notice of the Court and having failed to do so, it is not open to him to

contend that the payment cannot be put against him solely on the ground that it has not been certified as provided under 0. 2 1, R. 2 C.P.C.

According to him, the court has got ample jurisdiction to give proper relief to a party when prima facie the decree has been satisfied

In support to the above contentions, the learned counsel for the petitioner relied on the decision reported in Ram Dass and Ors. v. Mathura Lal

and Ors., (1982) 3 SCC 198 ,. wherein the Supreme Court has made an observation to the affect that it will open ,to the. respondents to urge

before, the executing Court that the appellants -have not complied -With the terms of the decree and therefore the decree has not been satisfied, in

spite of the provisions contained in 0. 21, R. 2 C.P.C. This is sought to be interpreted by the learned counsel for peculiar circumstances. I am,

unable to subscribe to that view since it is seen from the. very same Supreme Court judgment that though this '' point was raised before the

Supreme Court at the time of the Judgment, the Supreme Court did not go into that question viz, about the scope of 0. 2 1, R. 2 C.P.C. but has,

as a special case, remanded the matter to the trial court with the .observation that the respondents will -not be entitled to raise an objection on the

ground that no application under 0. 21, R. 2 C.P.C. was made by the appellants within time and the adjustment or payment under the decree was

not recorded by court on such application. Therefore, it cannot be construed that the Supreme Court has decided that such uncertified payment

can be recognised by the executing Court.

In answer to the contentions raised by the learned counsel for the petitioners, Mr R. S. Venkatachari, learned counsel for the respondents came

with a catena, of cases covering a period of nearly fifty years vehemently contended that no uncertified payment can be taken note of by the

executing Court. According to him, the Court has absolutely no jurisdiction to take into account all such payments. It will be time consuming if I

venture to consider all the decision cited by the learned counsel for the respondents. Therefore, it will be sufficient to deal with some of the cases to

bring home the point, which is involved, in the present revision.

Order 21, R. I C. '' P.C. provides for payment out of Court to a decree holder 0. 21, R. 2 C.P.C. contains three sub-rules providing for the

manner in which such payments could be proved. 0. 21, R. 3 C.P.C. reads as follows

A payment of adjustment, which has not been certified or recorded as aforesaid, shall -not be recognised by any court executing the decree"";

Rule 2 of 0. 21, C.P.C. does not provide for any I application being made, by the decree holder. The provision is that where-money payable

under a decree is paid out of court to .the satisfaction of the decree holder, the decree holder shall certify the payment to the Court and ~the Court

shall record the same accordingly. for that purpose, a procedure has been provided in the sub-rule. 0. 21, R.-2(2) C.P.C. provides an opportunity

of the judgment debtor to inform the Court a payment made by him out of court, and the procedure specified by this tub-rule- is very different from

the procedure referred to in sub-rule (1). sub-rule (2) contemplates an application by the judgment debtor in which notice should be given to the

decree holder. It affords an opportunity for the decree holder to appear and it involves a judicial decision., by the Court whether the payment

should be recorded or not.

There is no express article in the Limitation Act, applicable to the certification by the decree holder of a payment made out of Court to him. It is

not necessary for me to go into the question why the Legislature should have prescribed a specified time for the application under 0.2, R. 2(2)

C.P.C. and could have made no specific provision of limitation with regard to the procedure of certifying by the decree holder under 0. 21, 1D..

2(l) C.P.C. if such procedure were regarded as an application! Within the meaning, of the Limitation Act. R. 2(3) provides that a payment, which

has not been certified. as, recorded as aforesaid, shall not be recognised by any Court executing the decree. The provision in R. 2(3) no doubt

was inserted for good reasons known to the Legislature. Obviously, such a provision has been made, to simplify and expedite the proceedings in

the execution proceedings. In so far as the, application to be made by the judgment debtor is concerned, the old Limitation Act provides 90 days

and under the present Limitation Act Art. .125 provides only 30 days for filing such an application. In view of this positive position, the only

question to be decided is, whether there is any area of discretion available to the court to recognise an uncertified payment, when, as a matter of

fact, such payment has been proved.

This question was considered by a Full Bench of this Court in the decision reported in Nalam Subramanyam Vs. Devara Ramaswami and

Others, wherein this court has held as follows-

Where a decree has been adjusted if the decree holder does not certify such adjustment to the Court, the judgment debtor himself may apply to

the Court to issue a notice to the decree holder, to show cause why such an adjustment should riot -Be reordered as certified. Under Art. 174,

Limitation Act '' he has 90 days in which to do this. If the decree holder has not certified the adjustment and the judgment debtor has not got the

Adjustment recorded within that period , such an adjustment cannot be recognised by the Court executing the decree.

The same question was considered by the Privy Council in the decision reported in Raja Sri Prakash Singh v. the Allahabad Bank Ltd, 5 MLJ 233

: AIR 1929 PC 19 wherein it has been held as follows-

The terms of R. 2(l) of 0. 21 of C.P.C. do not provide'' for any application being made by the decree-holder. The decree holder would comply

with the terms of the rule if he were to certify to the Court that money payable under the decree had been paid to him out of Court and it would

then rest with the Court to record the payment in accordance with the provisions of the rule. Sub-rule (2) of 0. 21, does contemplate an

application by the judgment debtor.

Again another Full Bench of this Court interpreted the scope of 0. 21, R. 2, C.P.C. in the decision reported in Chowdhari Abdul Subhan Sahib

Vs. Kante Ramanna, wherein it was held, that it is not open to judgment debtor or any one standing in his, shoes to plead an uncertified adjustment

of a decree by way of defence to a suit filed by an auction purchaser for possession of property sold in. execution of the decree. Similar view was

taken by a Full Bench of the Bombay High Court in the decision reported in, Krishna Govind Patil v. Moolchand Keshavchand Gujar 43 Born LR

751 : AIR 1941 Bom. 302 which is in the following terms,: -

Where an assignee of a decree makes an application under 0. 21, Rr. 11 and 16 C. P.C. 1908 to the Court passing the decree for executing it,

the court is hearing the application as an executing Court and is bound in virtue of 0. 21, R. 2(3) not to recognise payment or adjustment which has

not been certified or recorded as required by R. 2(l),

Almost all the Courts in India and the Privy Council have taken the similar view on this question and, therefore, there is no difficulty in holding that

any payment made by a judgment debtor to -a decree holder outside the Court cannot be recognised in the absence of the same being recorded

under 0. 21, R. 2 C.P.C. These principles I have already been considered by this Court in . A.V. Kannappa Mudaliar Vs. V.C. Chellakutti

Udayar, . Therefore, I am of the view that the payment pleaded by the petitioner in the execution proceedings cannot be recognised.

Learned counsel for the petitioner raised another legal contention that the present execution application filed by the decree holder as well as the

assignee decree holder is not maintainable in- law. According to him, the decree holder, having assigned the -decree is no longer entitled to any

right under the decree and as such, any application on his behalf is unsustainable. I am unable to agree with him on this point also. The reason is

that it is not an application by the decree holder himself but the same has been filed principally by the assignee decree holder impleading the decree

holder also as one o the petitioners. I am unable to understand why the decree holder has been added as a party. Anyhow simply because the

decree holder also has been added as a formal party in the execution proceedings, it cannot be said that the entire application is not maintainable, it

may be, out of abundant caution, the decree holder has also been added as a party by the assignee decree holder in order to secure the recognition

for the assignment. Therefore, his presence till the recognition is accorded by the Court cannot be said to be unnecessary. Even after recognition, it

is only the assignee decree holder who is seeking to execute the decree, of course, in the presence of the decree holder. Therefore, viewing from

any angle, it cannot be said that the execution is levied by the decree holder. On this point also, the objection raised by the learned counsel for the

petitioner is not sustainable.

In the result, the civil revision petition f ails and is dismissed. No costs. It is open, to the petitioner to seek appropriate remedies against the

second respondent if available to him under law and if so advised. Learned counsel for the petitioner submits that the petitioner is not in a position

to pay the amount .immediately and there-fore prays for some time for payment. Learned counsel for the respondent, out of generously, does not

object to such a request. Therefore, three months'' time from this date-is granted to the petitioner to pay the amount.

Revision dismissed.