Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 361 (MAD)

Vijayalakshmi Ammal v. Paneerselvam & Another

2007-01-29

S.RAJESWARAN

body2007
Judgment :- The third party petitioner in O.E.A. 315 of 1996 in O.E.P. 107 of 1995 in O.S.No.84 of 1993 is the revision petitioner before this Court. He is aggrieved by an Order dated 111. 2001, passed by the Execution Court rejecting an application filed by him as third party to record full satisfaction of the decree on the basis of the record dated 19.05.1996 executed by the decree-holder. 2. The first respondent in the revision petition filed a suit in O.S.No.84 of 1993, against the second respondent herein and the Trial Court on 010. 1993, decreed the suit directing the second respondent herein, to pay to the first respondent herein, a sum of Rs.14,979/- with interest and also cost. 3. The first respondent herein as plaintiff/decree-holder, filed execution petition in E.P. No.107 of 1995 under Order XXI, Rule 22 read with Order XXI, Rule 66. The decree-holder prayed for auctioning the schedule mentioned property, which was already attached by the Trial Court in I.A. No.178 of 1993 and to pay the decree amount from the sale proceeds. 4. The revision petitioner as third party filed an application in O.E.A. No.315 of 1996 in O.E.P. No.107 of 1995 by stating that he purchased suit schedule property from the second respondent herein, on 22.03.1993, i.e., after the property was attached by the first respondent herein. It is his case that he does not know about the order and judgment. After coming to know about the auction date i.e., 112. 1995, he has filed an application. It is his case that a Panchayat was held, in which both the third party revision petitioner and the respondents herein, participated in which the revision petitioner paid a sum of Rs.19,500/- to the first respondent/decree-holder to satisfy the decree amount and the first respondent received the said sum of Rs.19,500/-and issued a signed document in this regard. Therefore, he filed the above application along with the receipt issued by the first respondent herein, praying to accept the receipt dated 29.05.1996, to record full satisfaction of the decree. 5. The first respondent herein, opposed the O.E.A 315 of 1996 by contending that no Panchayat was held and no money was paid by the revision petitioner and the receipt filed by the revision petitioner is a forged one and the signature is not his signature. 6. The Trial Court by its Order dated 111. 5. The first respondent herein, opposed the O.E.A 315 of 1996 by contending that no Panchayat was held and no money was paid by the revision petitioner and the receipt filed by the revision petitioner is a forged one and the signature is not his signature. 6. The Trial Court by its Order dated 111. 2001, dismissed the application by holding that no efforts have been taken by the revision petitioner to prove the signature in Ex.P1, viz., the receipt dated 29.05.1996 and there was no reason or motive attributed to the first respondent herein to deny the payment, if it was actually received by him. The lower Court has further held that there was no explanation from the revision petitioner why a Panchayat should be convened for settlement when the execution proceeding is pending before the Execution Court. 7. I have heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. 8. I have also gone through the documents and the judgments referred to by them in support of their submissions. 9. The learned counsel for the revision petitioner, submitted that the Execution Court before dismissing the application filed by the revision petitioner, ought to have compared the signature in Ex.P1, with the signature found in the pre-execution document and ought to have come to an independent conclusion. He relied on the decision of this Court reported in Chikkanan Vs. A.R.Perumal and 2 others (2004-4 L.W. 477) and the decision of the Honble Supreme Court reported in Fakhruddin Vs. The State of Madhya Pradesh ( AIR 1967 S.C. 1326 ) in support of his contentions. 10. The learned counsel for the first respondent has submitted that the Execution Court has correctly decided the issue and therefore the same need not be interfered with. 11. I have considered the rival submissions with regard to the facts and circumstances of the case. 12. The main contention of the learned counsel for the petitioner is that the Execution Court ought to have compared the signature by itself and come to an independent conclusion to find out whether Ex.P1 dated 29.05.1996, is genuine document or not. 13. I am unable to accept the submission of the learned counsel for the petitioner for the reason that the Execution Court has clearly observed that no efforts have been taken by the revision petitioner to prove the signature in Ex.P1. 13. I am unable to accept the submission of the learned counsel for the petitioner for the reason that the Execution Court has clearly observed that no efforts have been taken by the revision petitioner to prove the signature in Ex.P1. It is no doubt true that the Court itself can compare the signatures to find out the truth if it is possible. If it is not possible, the same has to be shown to an independent expert. It is the case of the revision petitioner that he has filed the application before the Execution Court for comparing the signature with the help of an expert. 14. Once the signature is denied by the first respondent herein in Ex.P1, the onus and the burden is heavily on the shoulders of the revision petitioner to prove that Ex.P1 is a genuine document. As rightly held by the Execution Court, the revision petitioner has miserably failed to discharge his burden to substantiate his contention. Therefore, there is no ground made out by the revision petitioner to interfere with the order of the Court below. The decisions relied by the learned counsel for the petitioner are not helpful as the facts in the case on hand are different. 15. Apart from that, the revision petitioner is also guilty of not following the mandatory provisions and the procedures contemplated under Order XXI Rule 1 & 2 C.P.C., which deals with any payment made by any person to the decree holder in the satisfaction of the decree amount. Order XXI Rule 1 & 2 are extracted below for better understanding. "RULE 1. Modes of paying money under decree:- .(1) All money, payable under a decree shall be paid as follows, namely:- .(a) by deposit into the Court whose duty it is to execute the decree, or sent to the Court by postal money order or through a bank; or .(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or .(c) otherwise, as the Court which made the decree, directs. .(2) Where any payment is made under clause (a) or clause (c) of sub-rule 910 the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due. .(2) Where any payment is made under clause (a) or clause (c) of sub-rule 910 the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due. .(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:- .(a) the number of the original suit; .(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants; .(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs; .(d) the number of the execution case of the Court, where such case is pending; and .(e) the name and address of the prayer. .(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2). .(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment: Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be. RULE 2. Payment out of Court to decree-holder:- .(1) 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 is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of 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 sale accordingly. (2A.) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless-- .(a) the payment is made in the manner provided in Rule 1; or .(b) the payment or adjustment is proved by documentary evidence; or .(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (20 of Rule 1, or before the Court. .(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. HIGH COURT AMENDMENT (MADRAS): In sub-rule (2), for the words, "The judgment-debtor", substitute the words "Any party to the suit or his legal representative or any person who has become surety for the decree debt." The amendment made by the Madras High Court has been adopted in the rule by the amendment Act, 1976." 16. From the above, it is very clear that when the amount is paid out of Court, the same should be certified at the instance of the judgment-debtor after giving a show-cause notice to the decree-holder and no payment which has not been certified shall be recognised by any Court executing the decree. A time limit for approaching the Court for certifying the payment is 30 days. 17. Admittedly, in this case, no steps have been taken in this regard by the revision petitioner under Order XXI Rule 1 & 2 with regard to Ex.P1 dated 29.05.1996. 18. I find no merits in the above Civil Revision Petition. Therefore, the same is dismissed. No costs. The connected C.M.P is also dismissed.