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2006 DIGILAW 1286 (AP)

Somu Adinarayana v. Balanagu Subba Rao (died) per L. R.

2006-10-19

C.Y.SOMAYAJULU

body2006
ORDER 1st respondent obtained a decree for specific performance against the revision petitioner and filed EP for executing the said decree. In that EP, revision petitioner filed a petition under Order 21 Rule 2 CPC for recording satisfaction or adjustment of the said decree alleging that the decree put to execution was adjusted out of Court by the decree holder by receiving money from him. During the pendency of that petition, 1st respondent died and so his son was brought on record as 2nd respondent. He filed his counter denying adjustment between the deceased-1st respondent and the revision petitioner. 2.In support of his case, the revision petitioner besides examining himself as P.W.1 examined three other witnesses as P.Ws.2 to 4 and marked Exs.A-1 to A-5. On his behalf 2nd respondent besides examining himself as R.W.1 examined two other witnesses as R.Ws. 2 and 3 and marked Exs.B-1 to B-9. Exs.X-1 to X-3 were marked through RW.3. 3.The executing Court disbelieved EX.A-1 receipt of adjustment said to have been executed by the 1st respondent in favour of the revision petitioner, and dismissed the petition. Hence, this revision. 4.The maintainability of the petition filed by the revision petitioner in the executing Court was raised during the course of hearing contending that a petition under Order 21 Rule 2 CPC can be made only in money decrees but not in any other type of decrees. That contention cannot be accepted because Rule 2 of Order 21 CPC was amended by Act 104 of 1976 w.e.f. 01-02-1977 and a clause reading "or the decree of any kind is otherwise adjusted" is incorporated in that Rule 2 of Order 21 CPC. Therefore, it is clear that Rule 2 of Order 21 CPC applies to all kinds of decrees but not merely to money dsecrees. 5. The contention of the learned counsel for the revision petitioner is that improper appreciation of the evidence adduced by the executing Court resulted in its passing an erroneous order and contended that in view of the evidence adduced by the revision petitioner and EX.A-1, the decree under execution should be deemed to have been satisfied. 5. The contention of the learned counsel for the revision petitioner is that improper appreciation of the evidence adduced by the executing Court resulted in its passing an erroneous order and contended that in view of the evidence adduced by the revision petitioner and EX.A-1, the decree under execution should be deemed to have been satisfied. The contention of the learned counsel for the 2nd respondent is that since the revision petitioner admittedly does not own any property other than the property which is covered by the decree and is living by doing coolie work his contention that he took a hand-loan of Rs.20,000/- for discharging the debt allegedly due to the 1st respondent is rightly disbelieved by the executing Court. He further contended that since the evidence of R.W.3 (doctor) clearly shows that 1st respondent was undergoing treatment at Mummadivaram by the date of Ex.A-1 and so question of 1st respondent executing Ex.A-1 at Tadepalligudem does not arise. 6. The specific case of the revision petitioner is that 1st respondent, after falling sick, sent for him and informed him that he wants to adjust the case as his children are not looking after him properly, and that he was prepared to withdraw the decree in case he pays Rs.20,000/- and so he paid Rs.20,000/- to the 1st respondent in the presence of P.Ws. 2 to 4 near the hospital at Tadepalligudem. It is also his contention that 1st respondent, who is a professional money lender used to take agreements of sale and file suits for specific performance and used to withdraw the suits if amounts due to him are paid. P.Ws.2 to 4 are examined to show that the first respondent used to obtain agreement of sale and lend money and withdraw the suits for specific performance on payment of the money due to him. 7. The evidence of PW.1 is that Ex.A-1 was executed near the hospital at Tadepalligudem. The evidence of PW.3 (sic. R.W.3) read with EX.X-3 shows that the 1st respondent was an inpatient in tv10mnmadivaram hospital from 23-07 -2002 to 08-08-2002. EX.A-1 is dated 03-08-2002. Therefore, question of the 1st respondent executing any receipt at Tadepalligudem on 03-08-2002 does not arise, because he, in fact, was an in-patient in Mummidivaram Government Hospital on that day. 8. Ex.X-2 shows that 1st respondent was examined in the Government Hospital on 23-07-2002 as an out-patient. EX.A-1 is dated 03-08-2002. Therefore, question of the 1st respondent executing any receipt at Tadepalligudem on 03-08-2002 does not arise, because he, in fact, was an in-patient in Mummidivaram Government Hospital on that day. 8. Ex.X-2 shows that 1st respondent was examined in the Government Hospital on 23-07-2002 as an out-patient. So it is clear that the deceased first respondent was sick even from 23-07-2002. 9. RW.1 (sic.PW.1) (Revision Petitioner) during cross-examination stated that he lives by coolie work and that he took an amount of Rs.20,000/- as hand loan from the persons known to him for paying it to the 1st respondent. The above statement of RW.1 (P.W.1) that he obtained a hand-loan of Rs. 20,000/- from a person who is known to him cannot be believed or accepted because he admittedly, has no other property except the property covered by the decree for specific performance of the agreement of sale executed by him, obtained by the 1st respondent. Since R.W.1 (sic. P.W.1) admittedly lives by coolie work only, and has no unencumbered property, no ordinary prudent man would give a hand-loan of Rs.20,000/- to him without anybody standing surety for the amount lent. Assuming that the amount was lent on an assumption that the decree obtained by the 1st respondent is going to be adjusted, as an ordinary prudent money lender, the person, who allegedly lent Rs.20,000/- to the revision petitioner would have asked the 1st respondent to give the property covered by the decree under execution as security for the amount lent by him. All the above apart, revision petitioner did not examine the person who allegedly lent Rs.20,000/- to him as a hand loan for giving an opportunity to the respondents to verify if he really lent the money or not. For the above reasons and for the reasons mentioned by the Executing Court in the order under revision, I am of the considered opinion that the petition is filed only with a view to drag on the execution proceedings and so I find no merits in this petition. 10. Hence the revision is dismissed with costs.