P.P. Ahammed Koya Haji vs Antony G. Southil and Co.

M.M. Pareed Pillay, J.—Revision Petitioner is the judgment-debtor. His contention that he had paid Rs. 40,000 directly to the decree-holder (Respondent) and so that amount should be given due credit by the decree-holder was overruled by the executing Court.

The only question that falls for determination in the Civil Revision Petition is as to whether it is open to the revision Petitioner to raise such a contention without getting the payment certified from the Court.

Order XXI Rule 1 CPC envisages the mode of payment of money under decree. All money payable under a decree shall be paid as follows:

(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or

(b) out of Court, to the decree-holder by postal money order on through a bank or by any other mode wherein payment is evidenced in writing; or

(c) otherwise, as the Court which made the decree directs.

Out of court payment to the decree-holder may be either by postal money order or through a bank or by any other mode of payment evidenced in writing. Order XXI Rule 1(2) provides that wherever any payment is made by depositing the amount into court or sent to that Court by postal money order or through a bank or where payment is made out of court to the decree-holder by postal money order or through a bank of by any other mode wherein payment is evidenced in writing, judgment-debtor shall give notice thereof to the decree-holder either through the court or directly to him by registered post, acknowledgment due. Thus, it is incumbent upon the judgment-debtor who deposits decree amount into the Court or sends it to the decree-holder to give notice of such payment to the decree-holder either through Court or directly by registered post. The judgment-debtor cannot sit idle after depositing the decree amount into the Court or sending it to the decree-holder.

Order XXI Rule 1 (2) makes the position clear that any direct payment of the decree amount to the decree holder must be followed by a notice to his either through Court or through post. Thus, the definite position is that any payment of the decree amount out of Court should be by postal order or through bank or by any mode evidenced in writing. During execution proceedings it is not open to the judgment-debtor to contend that decree amount was paid directly to the decree-holder unless the payment is certified. The judgment-debtor is precluded from establishing uncertified payment of decree amount by leading evidence.

Order XXI Rule 2 provides for the payment out of Court to the decree-holder. When such payment is made, the decree-holder shall certify such payment or adjustment to the Court. The judgment-debtor also may inform the Court of such payment op 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. If the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same.

Sub-rule 2-A was added by CPC Amendment Act 104 of 1976. This rule makes it clear that no payment or adjustment shall be recorded at the instance of the judgment-debtor unless the payment was made in the manner provided in Rule 1 or the payment or adjustment is proved by documentary evidence or the payment or adjustment is admitted by the decree-holder in his reply to the notice. Revision Petitioner has not taken any steps to get the payment recorded as provided under Rule 2. As the alleged payment has not been recorded under Rule 2(2) and as Sub-rule 2-A has not been complied with, the Court cannot recognise it in view of, Sub-rule 3 which makes the position crystal clear that any payment or adjustment which is not certified or recorded shall not be recognised by any Court executing the decree. This is intended to meet situations where a judgment-debtor makes a tall claim of payment or adjustment of decree amount and harps on leading evidence. The wholesome principle behind Sub-rule 3 is that the executing Court should not be pestered with dispute between parties with regard to any payment or adjustment unless the same was duly recorded and certified.

The Court below was perfectly justified in holding that Ext. B-4 payment being not certified or recorded cannot be recognised. The C.R.P. is devoid of merit and hence it is dismissed in limine.