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

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.