IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.04.2010
CORAM:
THE HON'BLE MR. JUSTICE M.DURAISWAMY
Second Appeal No.1729 of 1991
Krishnaswamy Reddiar .. Appellant
Vs
1.Krishna Reddiar (died)
2.Meenakshi Ammal
3.Thirunavkkarasu
4.K.Subramani
5.K.Senthil KUmar
6.Uma
7.Ponnarasi
(R-2 to R-7 are brought on record as
LRs of the deceased sole respondent vide
order of court dated 28.1.2003 made in
CMP Nos.10897 to 10899/02) .. Respondents
SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 1.10.1991 made in A.S.No.83 of 1989 on the file of Sub Court, Virdhachalam reversing the Judgment and Decree dated 8.3.1999 passed in O.S.No.111 of 1984 on the file of District Munsif Court, Kallakurichi.
For Appellant : Mr.G.Rajagopalan, S.C.
For M/s.G.R. Associates
For Respondents : Mr.S.Mukunth for
M/s.Sarvabhuman Associates
J U D G M E N T
The above Second Appeal arises against the judgment and decree in A.S.No.83 of 1989 on the file of Sub Court, Virdhachalam reversing the Judgment and Decree in O.S.No.111 of 1984 on the file of District Munsif Court, Kallakurichi.
2. The defendant in the suit is the appellant in the above second appeal and the first respondent is the plaintiff in the suit.
3. The plaintiff filed the suit in O.S.No.111 of 1984 on the file of District Munsif Court, Kallakurichi for permanent injunction restraining the defendant from executing the decree in O.S.No.220 of 1971 on the file of Sub Court, Cuddalore.
4. The brief case of the plaintiff in the suit is as follows:-
According to the plaintiff, the defendant filed the suit in O.S.NO.220 of 1971 on the file of Sub Court, Cuddalore for recovery of Rs.11,796.67 with future interest against the present plaintiff based on a promissory note executed by the plaintiff in favour of the defendant. The suit was decreed ex parte on 1.9.1972. Subsequently, the present plaintiff approached the defendant herein for settlement of the decree amount and in full settlement of the claim of the defendant, the plaintiff paid Rs.10,000/- and the defendant gave a receipt on 19.6.1974. The said receipt was written by the defendant himself and it was attested by his elder brother Varadarajalu Reddiar and another Raju Naidu. Since the plaintiff and the defendant did not know the suit number, that portion was left blank in the receipt executed by the defendant. The defendant has not obtained any other decree except the decree in O.S.No.220 of 1971. The defendant undertook to file full satisfaction memo in Sub Court, Cuddalore. The present plaintiff believed the representation and kept quite for all these years, thinking that the defendant would have entered full satisfaction of the decree long ago. While so, the defendant filed execution petition for executing the decree in O.S.No.220 of 1971 on the file of Sub Court, Cuddalore. Therefore, the plaintiff filed the suit.
5. The brief case of the defendant is as follows:
According to the defendant the receipt dated 19.6.1974 is a valid document and the plaintiff did not pay any amount to the defendant. The suit for permanent injunction is not maintainable. The defendant filed execution petition in E.P.No.581 of 1983 for his arrest. However, the plaintiff evaded to receive the notice and it was only thereafter he has invented to file the present suit. Therefore, the defendant prayed for dismissal of the suit.
6. Before the trial court, on the side of the plaintiff, 2 witnesses were examined and 2 Exs. A-1 and A-2 were marked and on the side of the defendant, the defendant was examined as D.W.1 an no document was marked.
7. The trial court after taking into consideration, the oral and documentary evidences of both sides, dismissed the suit.
8. Aggrieved over the judgment and decree of the trial court, the plaintiff preferred appeal in A.S.No.83 of 1989 on the file of Sub Court, Virdhachalam and the lower appellate court, after taking into consideration the materials available on record, reversed the judgment and decree of the trial court and allowed the appeal.
9. Aggrieved over the judgment and decree of the lower appellate court, the defendant has filed the above second appeal.
10. Heard Mr.G.Rajagopalan, learned senior counsel appearing for the appellant and Mr.S.Mukunth, learned counsel for the respondents.
11. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:-
“i) Whether the lower appellate court was right in relying upon Ex.A1 the alleged receipt purported to have been issued by the appellant for the satisfaction of the debt in O.S.No.220 of 1971 when the same has not been certified under Order XXI Rule 2(2) C.P.C?
ii) Whether the lower appellate court is correct in decreeing the the suit of the respondent when the suit relief as prayed for is itself not maintainable in law as reported in ILR 31 Calcutta 480?
iii) Whether the lower appellate court decree is sustainable in law when the lower appellate Court has not properly framed the points of consideration with reference to the period of limitation and in the absence of any findings with reference to the same?
iv) Whether the lower appellate Court is right in comparing the signature of the appellant contain in Ex.A-1 with the signature of the appellant contained in the suit records to show that Ex.A-1 is not a forged one?
v)Whether the lower appellate court is right in holding that the present suit is maintainable when the respondent remained ex parte in O.S.220 of 1971 filed by the appellant for the recovery of the debt amount?”
12. Learned senior counsel appearing for the appellant after giving notice to the learned counsel for the respondents, also raised the following additional substantial question of law for consideration:-
” Whether the suit filed by the respondent is maintainable in law in view of the ar under section 47 of C.P.C.?”
13. On a careful consideration of the materials available on record and the submissions made by Mr.G.Rajagopalan, learned senior counsel appearing for the appellant and Mr.S.Mukunth, learned counsel for the respondents, it could be seen that it is not in dispute that the appellant had filed the suit in O.S.No.220 of 1971 on the file of Sub Court, Cuddalore for recovery of Rs.11,796.69 and the suit was decreed ex parte on 1.9.1972. According to the respondents, subsequent to the decree he paid a sum of Rs.10,000/- on 19.6.1974 under Ex.A-1 receipt to the appellant towards full and final settlement of the decree amount. The appellant filed the execution petition in E.P.No.581 of 1983 to execute the decree in O.S.No.220 of 1971. Subsequent to the filing of the execution petition, the respondent-plaintiff has filed the present suit for permanent injunction restraining the appellant-defendant form executing the decree in O.S.No.220 of 1971.
14. Learned senior counsel appearing for the appellant submitted that the suit is not maintainable in view of Order XXI Rule 2 CPC and section 47 CPC. In support of his contention, the learned senior counsel relied upon the the judgment reported in AIR 2006 SC 2167 (Padma Ben Banushali & Anr. v. Yogendra Rathore & Ors.), wherein the Hon’ble Apex court held that any adjustment or payment out of court which is not certified or recorded by court under Order XXI Rule 2 will not be recognised by the executing Court and executing Court would not recognise them and will proceed to execute the decree.
15. Order XXI Rule 2 CPC clearly says that any payment or adjustment which has not been certified or recorded would not be recognised by any court executing the decree.
16. Section 47 CPC provides that all questions arising between the parties to the suit in which the decree was passed shall be determined by the court executing the decree and not by a separate suit.
17. Therefore, the respondent-plaintiff instead of filing an application before the execution court to record full satisfaction to prove Ex.A-1 receipt, has filed the present suit for permanent injunction. Under Order XXI Rule 2 CPC and Section 47 CPC, it is clear that any payment which is not certified or recorded by the court under Order XXI Rule 2 will not be recognised by the executing court.
18. Therefore, applying the principles laid down in AIR 2006 SC 2167 (referred supra) it is clear that the alleged payment made by the respondent-plaintiff when not been certified or recorded by the court, shall not be recognised by any court executing the decree. Therefore, in view of the same, the suit is liable to be dismissed. The judgment and decree of the lower appellate court are liable to be set aside.
19. In these circumstances, the relevant substantial questions of law are decided in favour of the appellant. The judgment and decree of the lower appellate court made in A.S.No.83 of 1989 are set aside and the judgment and decree of the trial court made in O.S.No.111 of 1984 are restored. The above second appeal is allowed. However, there shall be no order as to costs.
rj
To
1.The Sub Court,
Virdhachalam.
2.The District Munsif Court,
Kallakurichi