IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13925 of 2009(O)
1. POTHILLATHIL SEEMANTHINI, AGED
... Petitioner
Vs
1. E.M. DILEEP. AGED 41 YEARS, S/O. ISMAIL
... Respondent
For Petitioner :SRI.V.R.KESAVA KAIMAL
For Respondent :SRI.P.K.RAVISANKAR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :11/03/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C). No. 13925 of 2009
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Dated this the 11th day of March, 2010.
JUDGMENT
Petitioner was the plaintiff in O.S.264 of 1999
on the file of Sub Court, Thalassery. That was a suit for
declaration to the effect that Document No.1250 of 1999
executed by the plaintiff was only as a security for a loan
transaction and never intended to be a sale deed. The
parties entered into a compromise and Ext.P1 is the
compromise decree. As per the decree, the respondent
herein was to pay Rs.1,25,000/- to the petitioner and on
payment of the same the plaintiff was to surrender
vacant possession of the house in which she was
residing. The respondent is the second defendant in the
suit. According to the petitioner, the respondent did not
honour his commitment and did not pay the amount.
That forced the petitioner to file execution petition. A
copy of the petition is produced as Ext.P2. The
respondent entered appearance and objected to the
WPC.13925/2009. 2
execution petition. Ext.P3 is his objection. The contention
of the respondent was that the amount was in fact paid by
him and in turn the decree holder had executed the deed as
contemplated by the decree. The document so executed is
marked as Ext.P4. The petitioner alleges that it is a forged
document and she had not executed the same and the
money had not been paid to her.
2. It is pointed out that the respondent had
initiated criminal proceedings against the son of the
petitioner for offence punishable under Section 138 of
Negotiable Instruments Act. In that proceedings, the
respondent had given his testimony and that is Ext.P5. The
petitioner points out that in the criminal proceedings Ext.P4
was not produced at all. Finally the criminal proceedings
ended in the acquittal of the son of the petitioner.
3. In the light of the controversy involved, the
execution court took evidence in the matter. The petitioner
examined herself as P.W.1 and marked Ext.A1. From the
side of the respondent R.Ws.1 and 2 were examined and
WPC.13925/2009. 3
Exts.B1 and B2 were marked. The execution court by order
dated 25.10.2008 dismissed the execution petition. The said
order is appealed in this writ petition.
4. The question that arises for consideration is
whether any interference is called for with the order of the
execution court.
5. There is no dispute regarding the fact that
there was a suit as O.S. 264 of 1999 between the petitioner
herein and three persons as defendants. The second
defendant is the respondent herein. That suit was
compromised and a compromise decree was passed, which
is produced as Ext.P1. As per that compromise decree, the
second defendant in the suit, that is the respondent herein,
was to pay a sum of Rs.1,25,000/- to the plaintiff on
21.1.2001 being the compensation and on tendering that
amount, the plaintiff had to surrender possession of the
house named “Pranatha’ bearing No.ELP XI-99 situate in the
property scheduled to document no.1250/99 of SRO Kannur.
The grievance of the decree holder is that the said amount
WPC.13925/2009. 4
has not been paid. On the other hand, the respondent would
contend that he had infact paid the amount to the decree
holder and she had executed Ext.A1 agreement, which
clearly shows that the house has been surrendered to him.
The court below chose to accept the version given by the
respondent and dismissed the E.P..
6. Learned counsel appearing for the petitioner
pointed out that the court below has omitted to take note of
Order XXI Rule 1 and 2 CPC. Going by that provision, in case
payment is said to have been made by the judgment debtor
out of court in the manner provided therein, the payment
cannot be taken into consideration unless the decree holder
certifies such payment or the court. There is no such
certification in the case on hand and on that sole ground,
the relief should have been granted to the petitioner. It is
also contended that the definite case of the decree holder
was that Ext.B1 agreement produced by the respondent was
a concocted document and that it was not executed by her.
It is claimed that the document ought to have been
WPC.13925/2009. 5
forwarded for expert opinion and the order now passed
without doing so is illegal. Various other circumstances are
also pointed out by the learned counsel for the petitioner,
which according to her would indicate that the claim of the
respondent is totally false.
7. Learned counsel appearing for the respondents
on the other hand submits that there is no merit in any of
the contentions raised by the petitioner before this court.
Attention was drawn to the pleading in the E.P. wherein it is
clearly stated that the decree holder had vacated the
premises in January, 2001 itself and handed over the key to
the respondent. In evidence of the same, she had executed
Ext. B1 agreement also. Attention was drawn to the fact
that E.P. was filed only in 2006. Having surrendered the
building in 2001, it is inconceivable that she would have
waited till 2006 if as a matter of fact the amount had not
been received by her. Learned counsel also drew the
attention of this court to the fact that there was criminal
proceedings initiated by the respondent against the son of
WPC.13925/2009. 6
the decree holder for offence under Section 138 of the
Negotiable Instruments Act and in order to pressurise the
respondents to withdraw the same, the present proceedings
had been instituted.
8. It is difficult to believe the case put forward by
the petitioner. There was a compromise decree passed in
the suit between the plaintiff and the respondent and two
others. The condition was that on payment of Rs.1,25,000/-
the decree holder would vacate the house and hand it over
to the respondent. The respondent has produced Ext.B1,
which according to him is the document which would
indicate that the decree has been honoured by him as well
as the decree holder. The petitioner disputes her signature
on the said document. The respondent had examined
himself and another person, who is a witness to Ext.B1.
Both of them say about the payment of the amount and
execution of Ext.B1 by the petitioner.
9. It is true that in the deposition given before
criminal court proceedings against the son of the petitioner,
WPC.13925/2009. 7
the respondent does not say about Ext.B1 agreement. This
was highlighted as a clinching circumstance by the learned
counsel for the petitioner.
10. One must at once notice that the issue
regarding Ext.B1 was not a matter relevant for consideration
in the criminal proceedings. There was no occasion for the
respondent to urge that Rs.1,25,000/- had been paid to the
petitioner and she had executed a document. Therefore this
contention has no basis.
11. The evidence of P.W.1 is very interesting. She
has filed an affidavit in chief in which she speaks about the
case in terms of the execution petition. In cross
examination she admitted that she had surrendered the
building to the respondent and maintained that she had not
received the amount as stipulated in the decree. When she
was shown her vakalath, E.P. etc, she denied her signature
on all documents presented by her before court. The court
below has considered the evidence in detail and also found
that the signature found on Ext.B1 tallies with the other
WPC.13925/2009. 8
signatures of the petitioner available before court. This
aspect was taken serious objection to by the learned counsel
for the petitioner. It is pointed out that first of all the court
was not justified in doing so and the court below ought to
have sent the document for expert opinion. It is also pointed
out that a bare look at the signature would show that they
are different.
12. There is no rule that the court should sent the
document for expert opinion and there is no harm in the
court comparing the signatures. The court is enabled to do
so under Section 73 of the Evidence Act but the court shall
not base its conclusion only on that basis. Opinion formed
by the court on comparison of the signature can be taken as
an additional item of evidence and that should not be the
sole criterion for arriving at a decision. The court below
cannot be found fault with for comparing the signatures.
13. Learned counsel appearing for the petitioner
referred to the decisions reported in Ittiavira Thommen v.
Chandry Abraham (1956 KLT 282), V. Ponnappan v.
WPC.13925/2009. 9
Vijayan (1997(1) KLJ 207), M.K. Lakshman v. K.
Surendran (1997(2) ILR Ker. 826) and Sultama Begum v.
Prem Chand Jain ((997) 1 SCC 373) for the position that
unless the payment of amount is certified under Order XXI
Rules 1 and 2, the payment cannot be accepted. However,
at the time of argument, learned counsel was forced to
concede that this provision may not have any application at
all. Even if it is necessary, Ext.B1 is sufficient to show that
the amount has been paid.
14. As rightly pointed out by the learned counsel
for the respondents, if as a matter of fact the building was
surrendered in 2001, it is inconceivable that the petitioner
and her son would have kept quite for such a long period in
case they have not received the amount as per the decree.
This is a clinching circumstance which goes against the
petitioner. Then her conduct in the court in denying all her
signatures also shows that she had no regard for truth.
There is no reason to disbelieve R.Ws. 1 and 2. The court
below has carefully perused Ext.B1 document and had come
WPC.13925/2009. 10
to the conclusion that it was infact executed by the
petitioner.
15. A fervent plea was made by the learned
counsel for the petitioner that this court may remand the
matter to the trial court directing the trial court to send
Ext.B1 document for expert opinion. Apart from the fact that
it is unnecessary, it will also serve no purpose. One may
remember that the petitioner has chosen to deny her
signatures on all the documents filed by her in court. Under
such circumstances, it is felt that it is unnecessary to accede
to the request made by the learned counsel for the
petitioner.
16. The inconsistency in the evidence of R.W.1 is
not so serious so as to disbelieve him. As rightly pointed
out by the lower court, Ext.A1 deposition is in criminal
proceedings in which the issue now involved was not at all
relevant. It is on the basis of the inconsistencies in the
deposition that the petitioner had ventured to contend that
WPC.13925/2009. 11
Ext.B1 is a concocted document and it was subsequently
drawn up.
17. Merely because there are some
inconsistencies in the deposition before the criminal court
and before the execution court, it cannot be said that Ext.B1
is a concocted document. One cannot easily accept that
the petitioner would have simply surrendered the building
without receiving the amount. No valid reason is given
either in the execution petition or in her deposition as to why
she did so. One must also remember that she has a son. He
also did not react when the amount was not paid by the
respondent. It is true that Ext.B1 agreement was executed
on the very same day of the compromise decree itself. But
that is not a ground to doubt the same in the light of the
averments in the execution petition.
18. The court below has considered the entire
matter in great detail and no grounds are made out to
interfere with the order of the court below.
WPC.13925/2009. 12
This writ petition is without merits and
accordingly it is dismissed.
P. BHAVADASAN,
JUDGE
sb.