Nandagopal Gounder vs Kannan and Another

Sivasubramaniam, J.—This revision petition is directed by the judgment-debtor against the order passed in E.A.No. 913 of 1984 in O.S.

No. 589 of 1980 on the file of the District Munsif, Villupuram.

The 2nd respondent herein obtained two decrees against the petitioner herein in O.S. Nos. 287 of 1979 and 589 of 1980 on the file of the

District Munsif, Villupuram. He signed the said two decrees in favour of the 1st respondent herein for valuable consideration. On the basis of the

assignment, the 1st respondent filed E.A. No. 913 of 1984 in C.S. No. 589 of 1980 under Order 21, Rule 16, C.P.C., praying for the recognition

of the assignment of the decree in C.S. No. 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. 2,750 on 5-11-1983 in full satisfaction of the said

two decrees to the 2nd respondent and obtained a receint evidencing such payment. Therefore, he contended that the assignment in favour of the

1st respondent is not true and valid and since the 2nd respondent had already received the amount due under the two decrees, the assignment is

not binding on him. The learned District Munsif, Villupuram over-ruled the objection raised by the petitioner and allowed two applications.

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

Mr. V. Prabhkar, learned Counsel for the petitioner submits that under Ex. B1 the entire amount had been paid and there was no amount due

under the two decrees obtained by the 2nd respondent against the petitioner. Learned Counsel for the petitioner further submitted that after having

received the amount under Ex. B1, the 2nd respondent has fraudulently assigned the decree in favour of the 1st respondent. He also relies on the

finding of the learned District Munsif to the effect that the payment under Ex. B1 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 that payment, which has

been proved beyond all reasonable doubt. According to him, the provisions contained in Order 21, Rule 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 Order 21, Rule 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 of the above contention the learned Counsel for the petitioner relied on the decision reported in Ram Dass v. Mathur Lal (1982) 2

S.C.C. 198, wherein the Supreme Court has made an observation to the effect that it will be open to the respondent 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 Order 21, Rule 2, C.P.C. This is sought to be interpreted by the learned Counsel for the petitioner that the Court has got ample

power to take into consideration of such uncertified payments in certain peculiar circumstances. I am unable to subscribe to that view since it is

seen from the very same Supreme Court judg-iuent 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 Order 21, Rule 2, C.P.C., but has, as a special case, remanded the matter to

the trial Court with theoobser-vation that the respondents will not be entitled to raise an objection on the ground that no application under Order

21, Rule 2, C.P.C., was made by the appellants within time and the adjustment or payment under the decree was not recorded by the 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 petitioner, Mr. R.S. Venkatachari, learned Counsel for the respondents came

with a catena of cases covering a period of nearly fifty years and 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 decisions 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, Rule 1, C.P.C., provides for payment out of Court to a decree-holder. Order 21, Rule 2, C.P.C., contains three subrules providing

for the manner in which such payments could be proved. Order 21, Rule 3, C.P.C., reads as follows:

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

Rule 2 of Order 21, C.P.C, does not provide for any 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 case accordingly. For that purpose, a procedure has been provided in the sub-rule. Order 21, Rule 2(2), C.P.C., provides no

opportunity for the judgment-debtor to inform the Court of a payment made by him out of Court, and the procedure specified by this sub-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 pay-x ment 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 Order 21, Rule

2(2), C.P.C., and should have made no specific provision of, limitation with regard to the procedure of certifying by the decree-holder under

Order 21, Rule 2(1), C.P.C., if such procedure were regarded as an ''application'' within the meaning of the Limitation Act. Rule 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

Rule 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, Article 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 as 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 v. Devara Ramaswami (1932) 62

M.L.J. 56 : ILR Mad. 720 : AIR 1932 Mad. 372 : 35 L.W. 538, 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 not be recorded as certified. Under Article 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 had not got the

adjustment recorded within that period. Such as 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 Shri Prakash Singh v. The Allahabad Bank Limited

(1929) 56 M.L.J. 233 : (1929) L.R. 56 IndAp 30 : 29 L.W. 161 : AIR 1929 P.C. 19, wherein it has been held as follows:

The terms of Rule 2(1) of Order 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 Order 21, does contemplate an

application by the judgment-debtor.

Again, another Full Bench of this Court interpreted the scope of Order 21, Rule 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 a 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. Trilok-chand

Keshavchand (1944) 43 Bom.L.R. 761, which is in the following terms:

Where an assignee of a decree makes an application under Order 21, Rules 11 and 16, C.P.C., 1900 to the Court passing the decree for

executing it, the Court hearing the application as an executing Court and is bound in virtue of Order 21, Rule 2(3), not to recognise payment or

adjustment which has not been certified or recorded as required by Rule 2(1)(2).

Almost all the Courts in India and the Privy Council have taken a 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

Order 21, Rule 2, C.P.C. These principles 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 extension 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 of 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 recognitio 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 prasence 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 fails and is dismissed. No costs. It is open to the petitioner to seek appropriate remedies against the

2nd respondent if available to him under law and if as advised. Learned Counsel for the petitioner submits that the petitioner is not in a position to

pay the amount immediately and therefore, prays for some time for payment. Learned Counsel for the respondent, out of generosity, does not

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