High Court Kerala High Court

Dr.P.S.Krishnadas vs T.P.Venugopalan on 17 June, 2010

Kerala High Court
Dr.P.S.Krishnadas vs T.P.Venugopalan on 17 June, 2010
       

  

  

 
 
  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/-