IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18907 of 2010(O)
1. DR.P.S.KRISHNADAS,
... Petitioner
Vs
1. T.P.VENUGOPALAN, S/O.SEETHALAKSHMI AMMA,
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/06/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No.18907 of 2010
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Dated this 17th day of June, 2010
JUDGMENT
This writ petition is in challenge of Ext.P6, order in E.P.No.20
of 2009 in O.S.No.48 of 2002 of the Court of learned Sub Jude,
Ottapalam. Respondent obtained a decree for payment of money
and alleging that the amount due under the decree has not been
paid, he launched execution. He sought personal execution against
petitioner. Petitioner filed counter statement contending that the
decree debt has already been satisfied in that he had executed a
power of attorney in favour of respondent authorizing the latter to
sell his share in Sankar’s hospital, Cherpullassery and accordingly
respondent sold the share of petitioner and appropriated the sale
proceeds which discharged the liability under the decree. Learned
Sub Judge was not impressed by that contention and held that any
payment not certified either at the instance of petitioner or
respondent as provided under Rules 2 of Order 21 of the Code of
Civil Procedure (for short, “the Code”) within the time specified
under Article 125 of the Limitation Act cannot be taken into
account by the executing court and hence petitioner is liable to be
proceeded against in execution of the decree. That order is under
W.P.C.No.18907 of 2010
: 2 :
challenge in this writ petition. Learned counsel for petitioner
contended that this is a case where the plea taken by petitioner is
not one of discharge of the decree debt but satisfaction of the
decree which comes within the mischief of Section 47 of the Code
for which period of limitation is three years under Article 137 of the
Limitation Act and in that event, certification as provided under
Rule 2 of Order 21 is not required.
2. I am afraid, the contentions raised is not tenable. To
plead discharge or satisfaction of a decree for money one cannot
take recouse to Section 47 of the Code without reference to Rule 2
of Order 21 of the Code. Section 47 of the Code gives power to the
execution court while Rule 2 of Order 21 prescribes the procedure
(See Ponnappan Vs. Vijayan (1990(1) KLJ 207). Under Rule 2
of Order 21 “where any money payable under a decree of any kind
is paid out of court (or a decree of any kind is otherwise adjusted)
in whole or in part to the satisfaction of the decree holder, the
decree holder shall certify such payment or adjustment to the court
whose duty it is to execute the decree…..”. Sub rule 2 speaks
about recording of such adjustment or payment at the instance of
judgment debtor. Sub rule 2(A) states that no payment or
adjustment shall be recorded at the instance of judgment debtor
unless the conditions specified therein are complied. Argument of
learned counsel is that what was contended by petitioner in the
W.P.C.No.18907 of 2010
: 3 :
executing court was not a discharge of the liability but a
satisfaction of the decree by other mode which can be proved
under Section 47 of the Code and without reference to Rule 2 of
Order 21. That argument is not sustainable since as stated in
Ponnappan Vs. Vijayan (supra) the question of recording
satisfaction or discharge of the debt arises only when if payment if
made outside court, it is certified and recorded in the manner
stated in Rule 2 of Order 21, be it by the decree holder or judgment
debtor. Admittedly no such payment or adjustment of the amount
due under the decree has been certified and recorded in the
executing court by and at the instance of petitioner or respondent.
As such the alleged payment (which itself is disputed by the
respondent) cannot be reckoned for the purpose of recording
satisfaction or adjustment of amount due under the decree.
Executing court is right in rejecting the contention of petitioner. If
petitioner has paid any amount as contended by him, his remedy is
to institute a suit for realisation of the said amount but that does
not prevent respondent/decree holder from proceeding with
execution of the decree.
Accordingly the writ petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-