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1989 DIGILAW 125 (ORI)

POTTAM SREERAMULU AND SONS v. GUDLA SURYANARAYANA

1989-04-06

L.RATH

body1989
JUDGMENT : L. Rath, J. - The decree-holder in an execution proceeding is the Petitioner in this revision assailing the order of the Court below dropping the execution proceeding on the finding that the decretal amount had been adjusted. The acts in brief are that the Petitioner obtained a compromise decree in Money Suit No. 30 of 1978 against the opposite party on 14-4-1980 the terms of which were that the opposite party would pay Rs. 2,500/- in full satisfaction of the decree for an amount of Rs. 5,000/- and in the event of default, the Petitioner would be at liberty to execute the decree with full interest and costs. Since the amount was not paid by the opposite party, the Petitioner levied execution in 1983 for realization of Rs. 5,757.65. The opposite party on receiving notice in the execution case filed a counter on 12-7-1984 pleading that the decretal amount had been fully satisfied on his payment of twenty bags of paddy every year in 1981, 1982 and 1983. The Petitioner denied any such payment on which the executing Court conducted an enquiry and coming to the conclusion that the paddy as alleged had been paid, dropper the case on satisfaction of the decree. 2. The sole point raised by Mr. Rao, the learned Counsel for the Petitioner, is that the impugned? order is hit by the provisions of Order 21 Rule 2, Code of Civil Procedure. It is his submission that the decree-holder never certified the payment allowed to have been made by the opposite party and that the opposite party also never informed the Court of such payments and had not applied to the Court to issue notice to him to show Cause as to why such payment should not be recorded or certified. According to him, the limitation for filing an application by the opposite party before the Court to issue notice to the decree-holder for the purpose of certifying the payment has been made is thirty days from the date of the payment as provided under Art. 125 of the limitation Act. Since the paddy as allowed was paid in 1981, 1982 and 1983 without any application having been made either within the time or even beyond it and the alleged payment having not been recorded or certified, it is the contention of Mr. Since the paddy as allowed was paid in 1981, 1982 and 1983 without any application having been made either within the time or even beyond it and the alleged payment having not been recorded or certified, it is the contention of Mr. Rao that the alleged payment or adjustment is not available to be recognised by the Court executing the decree as provided for under Order 21, Rule 2(3), C.P.C. 3. The submission raised by Mr. Rao is well-founded. It is not disputed by the learned Counsel for the opposite party that in act the opposite party had not applied to the Court to certify the payment alleged to have been a made by him. Order 21, Rule 2(3) is as follows: A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. There is thus a compulsory provision that unless a payment of adjustment has been certified or recorded, it is not available to be recognised by the Court executing the decree. Admittedly the payment as stated to have been made by the opposite party having not been certified in accordance with the provisions of Sub-rule (2) to Rule 2 of Order 21, the plea of the opposite party of the decree having been satisfied on payment would not be available to be recognised by the Court and acted upon and to that effect the order has become bad in law. Mr. Rao also places reliance en an earlier decision of this Court, C.R. 604183, wherein similar view has been taken. 4. In the result, the Civil Revision is allowed; The order of the learned Subordinate Judge is set aside and the execution proceeding is restored to file. The teamed Subordinate Judge is directed to proceed with the execution proceeding from the stage where it was before the impugned order. There shall be no order as to costs. The I.C.R. be sent back immediately. Revision allowed. Final Result : Allowed