Payment out of court towards Decree amount - is not valid unless certified by the DHR -Order XXI Rule 2(2) CPC, if any payment or adjustment is made by the J.Dr in due discharge of the decree, he shall apply to the Court to issue a notice to the D.Hr to show cause, on a date to be fixed by the Court, why such payment or adjustment should not be recorded as certified and if after service of such notice, the D.Hr fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. Order XXI Rule 2 (3) CPC lays down that the payment or adjustment which has not been certified or recorded as aforesaid shall not be recognised by any Court executing the decree. Be that as it may, Art.125 of Limitation Act says that recording of adjustment or satisfaction of a decree has to be made within 30 days from the date of payment or adjustment.- The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised subject to the restriction placed by Order XXI Rule 2 including Sub-rule (3) containing special provisions regulating payment of money due under a decree outside the court or in any other manner adjusting the decree. The general provision under Section 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. The aforesaid aspects were highlighted in Sultan Begum's case (supra).
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Civil Revision Petition No.447 of 2017
20-03-2017
Shaik Mahammad Rafiuddin.... Petitioner/J.Dr
Gummala Narayana Reddy.Respondent/D.Hr
Counsel for the Petitioner: Sri Nagaraju Naguru
Counsel for the Respondent: Sri V.R.Reddy Kovvuri
<Gist:
>Head Note:
? Cases referred:
1) 1997(6)ALD 532
2) 2001(6)ALD 276
3) AIR 2006 SC 2167
4) AIR 1989 AP 264
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Civil Revision Petition No.447 of 2017
ORDER:
This C.R.P is filed by the petitioner/Judgment Debtor(J.Dr)
aggrieved by the order dated 30.11.2016 in E.P.No.157 of 2015 in
O.S.No.158 of 2011 passed by the learned Principal Junior Civil Judge,
Proddatur, Kadapa District, ordering warrant of attachment of salary of
the J.Dr for the realization of the E.P amount of Rs.70,360/- while
rejecting the contention of the J.Dr to the effect that as per agreement
dated 28.08.2015, the Decree Holder (D.Hr) received Rs.30,000/- from
him in full satisfaction of the decreetal amount.
2) Heard arguments of Sri Nagaraju Naguru, learned counsel for
petitioner and Sri V.R.Reddy Kovvuri, learned counsel for respondent.
3) Impugning the order of the execution Court, learned counsel for
petitioner would vehemently argue that the decree holder received
Rs.30,000/- in full satisfaction of the decreetal amount vide Ex.B.1
agreement but he gave a go by to the said out of Court settlement and
filed E.P and sought for attachment of the salary of the J.Dr and the trial
Court without considering the fact that the J.Dr by cogent evidence i.e,
by examining the scribe and attestor of Ex.B.1, who clearly deposed that
under the said agreement D.Hr received Rs.30,000/- in full satisfaction
of the decreetal amount, erroneously negatived the contention of the J.Dr
and issued warrant of attachment. He thus prayed to allow the CRP and
dismiss the E.P in view of the settlement between the parties out of
Court.
4) Per contra, the contention of learned counsel for respondent/D.Hr
is twofold:
i) Firstly, he would argue that the trial Court in its order raised
genuine suspicion about the validity of Ex.B.1 and rightly rejected the
said document;
ii) Secondly and alternatively, he would argue that even assuming the
contention of J.Dr to be true, still the said plea of out of Court settlement
cannot be accepted in view of the bar engrafted under Order XXI Rule 2
CPC as J.Dr failed to get the alleged out of Court payment recorded
through the executing Court within the period of limitation. To this
effect he placed reliance on the following decisions:
i) K.Sitarama Rao vs. Smt. D.Usha Sundari and others
ii) Haji P.Basheer Saheb vs. P.Rajanna
5) In the light of above rival arguments, the point for determination
is:
Whether there are merits in this CRP to allow?
6) POINT: Sofaras the genuinity of Ex.B.1 is concerned, the trial
Court raised certain doubts viz., firstly that according to J.Dr, the elders
compromised between J.Dr and D.Hr but RW.3 stated that he did not
know who conducted mediation whereas RW.2 stated that the mediation
was conducted in the year 2010 which militated against the claim of
RW.1(J.Dr) that the mediation was held one month prior to Ex.B.1;
secondly there were criminal cases and civil disputes between RW.3 and
D.Hr and inspite of the same RW.3 stated as if he has talking terms with
D.Hr which was strange and unbelievable; thirdly as per RWs.1 to 3,
strangely the stamp paper was brought by D.Hr himself and further,
RWs.1 to 3 and D.Hr were residents of Proddatur but the stamp under
Ex.B.1 was brought from Vempalle and was scribed in a Tea bunk
opposite to Court Complex etc., and the executing Court thus
disbelieved Ex.B.1 and issued warrant of attachment. I have carefully
gone through the order impugned and I see no illegality or perversity in
the said order. Now coming to the alternative contention of respondent/
D.Hr, as per Order XXI Rule 2(2) CPC, if any payment or adjustment is
made by the J.Dr in due discharge of the decree, he shall apply to the
Court to issue a notice to the D.Hr to show cause, on a date to be fixed
by the Court, why such payment or adjustment should not be recorded as
certified and if after service of such notice, the D.Hr fails to show cause
why the payment or adjustment should not be recorded as certified, the
Court shall record the same accordingly. Order XXI Rule 2 (3) CPC lays
down that the payment or adjustment which has not been certified or
recorded as aforesaid shall not be recognised by any Court executing the
decree. Be that as it may, Art.125 of Limitation Act says that recording
of adjustment or satisfaction of a decree has to be made within 30 days
from the date of payment or adjustment.
7) In the instant case, E.P.No.157 of 2015 was filed on 24.08.2015.
As per J.Dr, he paid D.Hr Rs.30,000/- under Ex.B.1 on 28.08.2015
following the out of Court settlement. However, the petitioner/J.Dr did
not apply before the executing Court for recording of the payment under
Ex.B.1 within one month from the date of Ex.B.1 in terms of Order XXI
Rule 2 CPC. He brought to the notice of the Court about the alleged
payment of Rs.30,000/- by way of out of Court settlement through his
counter dated 25.01.2016 for the first time. Thus, it is clear that the J.Dr
has not followed the mandate prescribed under Order XXI Rule 2 CPC.
The Apex Court and our High Court have narrated the effect of non-
recording of the satisfaction. In Padma Ben Banushali and another vs.
Yogendra Rathore and others , the Apex Court observed thus:
Para 12: The problem can be looked into from another angle
on the basis of the maxim "generalia specialibus non derogant".
Section 47, as pointed out earlier, gives full jurisdiction and
power to the executing court to decide all questions relating to
execution, discharge and satisfaction of the decree. Order XXI
Rule 3, however, places a restraint on the exercise of that power
by providing that the executing court shall not recognise or look
into any uncertified payment of money or any adjustment of
decree. If any such adjustment or payment is pleaded by the
judgment-debtor before the executing court, the latter, in view of
the legislative mandate, has to ignore it if it has not been
certified or recorded by the court.
Para 13: The general power of deciding questions relating to
execution, discharge or satisfaction of decree under Section
47 can thus be exercised subject to the restriction placed by
Order XXI Rule 2 including Sub-rule (3) containing special
provisions regulating payment of money due under a decree
outside the court or in any other manner adjusting the decree.
The general provision under Section 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. The aforesaid aspects were
highlighted in Sultan Begum's case (supra).
Our High Court in P.Narasaiah vs. P.Rajoo Reddy , K.Sitarama
Raos case(1 supra) and Haji P.Basheer Sahebs case(2 supra) also
expressed similar view. In view of clear exposition of the law, the
contention of the J.Dr cannot be upheld.
8) In the result, there are no merits in the CRP and accordingly, the
same is dismissed. No costs.
As a sequel, miscellaneous petitions pending if any, shall stand
dismissed.
____________________________________________
U. DURGA PRASAD RAO, J
Dt. 20.03.2017
Civil Revision Petition No.447 of 2017
20-03-2017
Shaik Mahammad Rafiuddin.... Petitioner/J.Dr
Gummala Narayana Reddy.Respondent/D.Hr
Counsel for the Petitioner: Sri Nagaraju Naguru
Counsel for the Respondent: Sri V.R.Reddy Kovvuri
<Gist:
>Head Note:
? Cases referred:
1) 1997(6)ALD 532
2) 2001(6)ALD 276
3) AIR 2006 SC 2167
4) AIR 1989 AP 264
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Civil Revision Petition No.447 of 2017
ORDER:
This C.R.P is filed by the petitioner/Judgment Debtor(J.Dr)
aggrieved by the order dated 30.11.2016 in E.P.No.157 of 2015 in
O.S.No.158 of 2011 passed by the learned Principal Junior Civil Judge,
Proddatur, Kadapa District, ordering warrant of attachment of salary of
the J.Dr for the realization of the E.P amount of Rs.70,360/- while
rejecting the contention of the J.Dr to the effect that as per agreement
dated 28.08.2015, the Decree Holder (D.Hr) received Rs.30,000/- from
him in full satisfaction of the decreetal amount.
2) Heard arguments of Sri Nagaraju Naguru, learned counsel for
petitioner and Sri V.R.Reddy Kovvuri, learned counsel for respondent.
3) Impugning the order of the execution Court, learned counsel for
petitioner would vehemently argue that the decree holder received
Rs.30,000/- in full satisfaction of the decreetal amount vide Ex.B.1
agreement but he gave a go by to the said out of Court settlement and
filed E.P and sought for attachment of the salary of the J.Dr and the trial
Court without considering the fact that the J.Dr by cogent evidence i.e,
by examining the scribe and attestor of Ex.B.1, who clearly deposed that
under the said agreement D.Hr received Rs.30,000/- in full satisfaction
of the decreetal amount, erroneously negatived the contention of the J.Dr
and issued warrant of attachment. He thus prayed to allow the CRP and
dismiss the E.P in view of the settlement between the parties out of
Court.
4) Per contra, the contention of learned counsel for respondent/D.Hr
is twofold:
i) Firstly, he would argue that the trial Court in its order raised
genuine suspicion about the validity of Ex.B.1 and rightly rejected the
said document;
ii) Secondly and alternatively, he would argue that even assuming the
contention of J.Dr to be true, still the said plea of out of Court settlement
cannot be accepted in view of the bar engrafted under Order XXI Rule 2
CPC as J.Dr failed to get the alleged out of Court payment recorded
through the executing Court within the period of limitation. To this
effect he placed reliance on the following decisions:
i) K.Sitarama Rao vs. Smt. D.Usha Sundari and others
ii) Haji P.Basheer Saheb vs. P.Rajanna
5) In the light of above rival arguments, the point for determination
is:
Whether there are merits in this CRP to allow?
6) POINT: Sofaras the genuinity of Ex.B.1 is concerned, the trial
Court raised certain doubts viz., firstly that according to J.Dr, the elders
compromised between J.Dr and D.Hr but RW.3 stated that he did not
know who conducted mediation whereas RW.2 stated that the mediation
was conducted in the year 2010 which militated against the claim of
RW.1(J.Dr) that the mediation was held one month prior to Ex.B.1;
secondly there were criminal cases and civil disputes between RW.3 and
D.Hr and inspite of the same RW.3 stated as if he has talking terms with
D.Hr which was strange and unbelievable; thirdly as per RWs.1 to 3,
strangely the stamp paper was brought by D.Hr himself and further,
RWs.1 to 3 and D.Hr were residents of Proddatur but the stamp under
Ex.B.1 was brought from Vempalle and was scribed in a Tea bunk
opposite to Court Complex etc., and the executing Court thus
disbelieved Ex.B.1 and issued warrant of attachment. I have carefully
gone through the order impugned and I see no illegality or perversity in
the said order. Now coming to the alternative contention of respondent/
D.Hr, as per Order XXI Rule 2(2) CPC, if any payment or adjustment is
made by the J.Dr in due discharge of the decree, he shall apply to the
Court to issue a notice to the D.Hr to show cause, on a date to be fixed
by the Court, why such payment or adjustment should not be recorded as
certified and if after service of such notice, the D.Hr fails to show cause
why the payment or adjustment should not be recorded as certified, the
Court shall record the same accordingly. Order XXI Rule 2 (3) CPC lays
down that the payment or adjustment which has not been certified or
recorded as aforesaid shall not be recognised by any Court executing the
decree. Be that as it may, Art.125 of Limitation Act says that recording
of adjustment or satisfaction of a decree has to be made within 30 days
from the date of payment or adjustment.
7) In the instant case, E.P.No.157 of 2015 was filed on 24.08.2015.
As per J.Dr, he paid D.Hr Rs.30,000/- under Ex.B.1 on 28.08.2015
following the out of Court settlement. However, the petitioner/J.Dr did
not apply before the executing Court for recording of the payment under
Ex.B.1 within one month from the date of Ex.B.1 in terms of Order XXI
Rule 2 CPC. He brought to the notice of the Court about the alleged
payment of Rs.30,000/- by way of out of Court settlement through his
counter dated 25.01.2016 for the first time. Thus, it is clear that the J.Dr
has not followed the mandate prescribed under Order XXI Rule 2 CPC.
The Apex Court and our High Court have narrated the effect of non-
recording of the satisfaction. In Padma Ben Banushali and another vs.
Yogendra Rathore and others , the Apex Court observed thus:
Para 12: The problem can be looked into from another angle
on the basis of the maxim "generalia specialibus non derogant".
Section 47, as pointed out earlier, gives full jurisdiction and
power to the executing court to decide all questions relating to
execution, discharge and satisfaction of the decree. Order XXI
Rule 3, however, places a restraint on the exercise of that power
by providing that the executing court shall not recognise or look
into any uncertified payment of money or any adjustment of
decree. If any such adjustment or payment is pleaded by the
judgment-debtor before the executing court, the latter, in view of
the legislative mandate, has to ignore it if it has not been
certified or recorded by the court.
Para 13: The general power of deciding questions relating to
execution, discharge or satisfaction of decree under Section
47 can thus be exercised subject to the restriction placed by
Order XXI Rule 2 including Sub-rule (3) containing special
provisions regulating payment of money due under a decree
outside the court or in any other manner adjusting the decree.
The general provision under Section 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. The aforesaid aspects were
highlighted in Sultan Begum's case (supra).
Our High Court in P.Narasaiah vs. P.Rajoo Reddy , K.Sitarama
Raos case(1 supra) and Haji P.Basheer Sahebs case(2 supra) also
expressed similar view. In view of clear exposition of the law, the
contention of the J.Dr cannot be upheld.
8) In the result, there are no merits in the CRP and accordingly, the
same is dismissed. No costs.
As a sequel, miscellaneous petitions pending if any, shall stand
dismissed.
____________________________________________
U. DURGA PRASAD RAO, J
Dt. 20.03.2017
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