IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25991 of 2008(T)
1. JOHN VICTOR, S/O GEORGE,
... Petitioner
Vs
1. GOPINATHAN, S/O BHASKARA PANICKER,
... Respondent
For Petitioner :SRI.G.P.SHINOD
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/08/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.25991 of 2008
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Dated this the 28th August, 2008.
J U D G M E N T
Petitioner is the judgment debtor in O.S.No.836 of
2001, on the file of Munsiff Court, Neyyattinkara. As per the
decree dated, 14.1.2002, petitioner was directed to pay
Rs.50,000/= with interest and cost. E.P.No.349 of 2002 was filed
for realisation of the decree debt by arrest and detention of the
petitioner on 10.10.2002. Petitioner appeared in the execution
petition and filed Ext.P3 objection on 3.2.2003. Along with the
objection, he produced a receipt dated 25.3.2002, contending
that it was a receipt issued by the respondent decree holder,
when petitioner paid Rs.50,000/= towards the decree debt.
Later, E.A.No.87 of 2007 was filed under Rule 2 of Order XXI of
code of Civil Procedure to certify the payment made under the
said receipt. That application is seen filed on 22.1.2007. When
respondent decree holder contended that he did not receive that
amount and payment cannot be certified, E.A.No.111 of 2007
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was filed to sent the document to an expert. Under Ext.P6 order,
learned Munsiff dismissed both the applications. This petition is
filed under Article 227 of the Constitution of India challenging
Ext.P6 order and for a direction to the executing court to adjust
the amount covered under Ext.P1 receipt towards the decree
debt.
2. Learned counsel appearing for the petitioner
was heard.
3. Learned counsel appearing for the petitioner
relying on the decision of a learned single Judge of the High Court
Andhra Pradesh in J.P.Mohana Rao v. Arava Joshuva
Panchalaiah (AIR 1978 AP 345) argued that Section 17(1)(a) of
the Limitation Act applies to the facts of the case and as
respondent fraudulently did not report the receipt of
Rs.50,000/= evidenced by the receipt, the period has to be
excluded from computing the period of limitation provided under
Article 125 of the Limitation Act, and, therefore, learned Munsiff
should have allowed the application. Learned counsel also
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argued that learned Munsiff did not properly appreciate the
dictum laid down by the Supreme Court in Ram Dass and
Others v. Mathura Lal and others (1982 (3) SCC 198).
Learned counsel also argued that when along with the objection
filed to the execution petition itself, petitioner has produced the
receipt, learned Munsiff should have treated the objection as an
application to certify payment evidenced by the receipt, and,
therefore, the application is within time and respondent decree
holder is bound to adjust the payment covered under the receipt.
4. Sub Rule (2-A) of Rule 2 of Order XXI of Code of
Civil Procedure mandates that no payment or adjustment shall be
recorded at the instance of judgment debtor, unless the payment
is made in the manner provided under sub-rule (1) or the
payment or adjustment is proved by documentary evidence or
the payment or adjustment is admitted by or on behalf of the
decree holder in his reply to the notice given under sub-rule (2)
of Rule 1 of Order XXI before the court. Sub Rule 3 mandates
that a payment or adjustment, which has not been certified or
recorded shall not be recognised by any Court executing the
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4
decree. Sub-rule (1) provides that where any money payable
under a decree of any kind is paid out of court, 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, and the Court shall record the same
accordingly. Judgment debtor is entitled to get the payment
certified on the failure of the decree holder to get it recorded, as
provided under sub-rule (1) by filing a petition as provided under
Sub-rule (2). Sub-rule (2) provides that judgment debtor may
inform the Court of such payment of adjustment and apply to the
court to issue a notice to the decree holder to show cause on a
date to be fixed by the court, why such payment or adjustment
should not be recorded as certified and after such notice, the
decree holder fails to show cause why the payment or adjustment
should not be recorded as certified, the court shall record the
same accordingly.
5. Therefore, sub-rule (2) mandates an application
from the judgment debtor to get the payment certified and such
payment should be recorded only after issuing notice to the
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5
decree holder to show cause why payment should not be
recorded as certified. Therefore, the argument of the learned
counsel appearing for the petitioner that objection filed to the
execution petition producing the certified copy without a prayer
for certifying the same is to be treated as an application cannot
be accepted.
6. Article 125 of the Limitation Act provides the
period of Limitation for filing an application to record an
adjustment or satisfaction of a decree. Under Article 125, an
application is to be made within 30 days and the time would start
to run when the payment or adjustment is made. Even according
to the petitioner, payment was made on 25.3.2002. Therefore,
an application under sub-rule (2) of rule 2 of Order XXI of Code
of Civil Procedure should have been filed within 30 days from the
date. Even if the argument of the learned counsel for the
petitioner that Section 17(1) (a) of the Limitation act applies is
accepted and because of the fraud, the period before petitioner
could find out the fraud is to be excluded is accepted, when the
execution petition was received by the petitioner in October
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2002, showing that the decree holder did not exclude any
payment, much less, the payment covered under the receipt,
petitioner cannot be allowed to contend that he did not disclose
the alleged fraud thereafer. In spite of the fact that Ext.P3
objection was filed on 3.2.2003, petitioner did not file an
application as provided under sub-rule (2) of rule 2 of Order XXI
of Code of Civil Procedure. The application was filed only in
2007. In such circumstances, finding of the learned Munsiff that
the payment cannot be certified is perfectly correct and warrants
no interference by this Court. If the petitioner has made the
payment, the order will not disentitle the petitioner to claim that
amount from the decree holder by separate proceedings. Petition
is dismissed
M.SASIDHARAN NAMBIAR,
JUDGE
nj.