Prithvi Singh vs Madan Singh

Dr. Bharat Bhushan Parsoon, J.

Dismissal of objection petition of the judgment-debtor vide impugned order of 6.11.2013 by the Executing Court is under challenge in this revision petition. Claim of the JD is that despite there being overwhelming evidence including that of handwriting and fingerprint expert that the decretal amount with interest had been paid to the decree holder vide receipt (Annexure P-2) is of 22.6.2008, his objection petition has wrongly been dismissed by the Executing Court. It is claimed that decree dated 27.9.2005 (Annexure P-1) stood wholly satisfied vide payment of decretal amount plus interest vide receipt (Annexure P-2).

Claim of the respondent-decree holder, on the other hand, is that entire version of the JD is concocted, whereas neither any payment was made by the JD nor any receipt (Annexure P-2) of 22.6.2008 had been issued by the decree holder in discharge of the decree.

Hearing has been provided to the counsel for the parties while going through the paper book.

Neither decree dated 27.9.2005 drawn in terms of the judgment of the same date is under dispute nor liability of the JD to pay a sum of Rs. 30,000/- with interest @ 6% per annum from the date of filing the suit i.e. 17.4.2002 is under question. Plea of the JD is that Rs. 45,000/- was paid to the decree holder towards discharge and execution of the decree vide receipt of 22.6.2008 (Annexure P-2) in presence of witnesses Om Parkash Sharma, Ram Niwas and Rajinder Singh. While discussing entire evidence produced by the petitioner-JD in support of receipt (Annexure P-2), the Executing Court had come to a firm finding that decree (Annexure P-1) was not satisfied by the JD and receipt (Annexure P-2) was not proved to be a valid and legal document.

Merely because handwriting and fingerprint expert V.P. Kashyap (JW2) had been produced by the JD in addition to his witnesses Om Parkash Sharma, Ram Niwas and Rajinder Singh, it cannot be said that the receipt stood proved against the decree holder. Receipt (Annexure P-2) allegedly has left thumb impression of decree holder Madan Lal, scribe whereof is Om Parkash Sharma whereas, Ram Niwas and Rajinder Singh are the attesting witnesses.

Statement of scribe Om Parkash Sharma (JW1) itself clinches the whole issue when he has deposed that recitals of receipt (Ex. P1) had been interpolated by making some additions therein. Photocopy of receipt scribed in Hindi (Annexure P-2) is clearly indicative of the fact that recitals have been squeezed in above the left hand thumb impression purported to be of decree holder Madan Lal. This conclusion that recitals of receipt were scribed above the purported thumb impression is sustained and supported by witness Rajinder Singh (JW3), when he has stated that he even did not know as to whether said thumb impression On receipt (Ex. P1) had been impressed before or after scribing of the said document. Almost to the same effect is the statement of Ram Niwas (JW4).

The Executing Court had correctly evaluated the evidence of the attesting witnesses as also of the scribe including that of objector Prithvi Singh and had correctly noticed that the objector even did not remember the correct date of the execution of receipt (Ex. P1). Statement of objector Prithvi Singh is that after execution of the same, receipt (Ex. P1) was produced before the court just the next day, which testimony is incorrect as per record. Report (Ex. JW/B) and testimony of handwriting expert has also been evaluated very minutely by the lower court to arrive at a conclusion against genuineness of receipt (Ex. P1).

Validity and legality of receipt (Ex. P1) could not be established by the JD on yet another count. Receipt (Ex. P1) is purported to have been executed on 22.6.2008. The JD is contesting the execution petition since the date of his appearance on 24.12.2007.

In terms of Order XXIII Rule 3 CPC, if any settlement was arrived at between the parties, the Executing Court was to be taken into confidence but it did not happen. Even otherwise, the JD had remained silent on the score of settlement allegedly made vide receipt (Ex. P1) on 22.6.2008 till 18.4.2009, when the objection petition was filed. Why not even a whisper was made about receipt (Ex. P1) right from the date of its execution i.e. 22.6.2008 till 18.4.2009, remains totally unexplained by the JD. Consequently, dismissal of the objection petition while rejecting receipt (Ex. P1) vide impugned order of 6.11.2013 by the lower court neither suffers from any factual nor legal error. Sequelly, affirming the impugned order, this petition being without any merit, is dismissed.