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2009 DIGILAW 379 (AP)

Shaik Hasan Saheb v. A. V. Subba Reddy

2009-06-18

L.NARASIMHA REDDY

body2009
ORDER The respondent filed O.S.No.770 of 2002 in the Court of III Additional Senior Civil Judge, Vijayawada, against the petitioner for recovery of certain amount. The suit was decreed, and after it became final, the respondent filed E.P.No.46 of 2003. In that E.P., the petitioner filed EANo.658 of 2004, under Rule 2 of Order 21 C.P.C., with a prayer to record full satisfaction of the decree. It was mentioned that several suits were filed by the respondent against the petitioner, and the subject-matter of all the suits, including the one, in O.S.No.770 of 2002, was settled for a sum of RS.9,50,000/-. A deed of settlement is said to have been executed on 28-09-2003, mentioning the number of various suits, and when it was found that O.S.No.770 of 2002 was not included in it, a supplemental document was executed on 30-09-2003. With these averments, the petitioner prayed for recording full satisfaction of the decree, in O.S.No.770 of 2002. The respondent opposed the application, and stated that the subject matter of the said suit was not compromised, at all. 2. The Executing Court conducted trial of the matter, and through its order dated 09-06-2005, it rejected the application. Hence, this C.R.P. 3. Heard Sri V.S.R. Anjaneyulu, learned counsel for the petitioner, and Sri Koti Reddy, I, learned counsel for the respondent. 4. It is a matter of record that O.S.No.770 of 2002, filed by the respondent against the petitioner, was decreed. The decree is not in terms of any compromise, or settlement. In the E.P., filed by the respondent, the petitioner came forward with an application to record full satisfaction of the decree, under Rule 2 of Order 21 C.P.C. 5. On denial of the plea, taken by the respondent, the trial took place. On behalf of the petitioner, P.Ws.1 to 3 were examined, and Exs.P-1 to P-4 were marked. The respondent deposed as R.W.1, and he did not file any documentary evidence. The Executing Court held that a settlement took place, between the petitioner and the respondent for a sum Rs.9,50,000/-, under documents, marked as Exs.P-1 to P-4, but the same did not include in the subject matter of O.S.No.770 of 2002. 6. Rule 2 of Order 21 C.P.C., provides for recording of settlement, that takes place outside the Court, at the instance of the decree-holder, as well as the judgment debtor. 6. Rule 2 of Order 21 C.P.C., provides for recording of settlement, that takes place outside the Court, at the instance of the decree-holder, as well as the judgment debtor. The provision reads as under: "Order 21, 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 of adjustment to the Court whose duty it 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 same 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 (2) of Rule 1, or before the court. (3) A payment of adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree". 7. From a perusal of this, it is clear that a decree-holder can simply file a memo, and without the necessity of any further verification, the Court can record it. Recording of satisfaction, at the instance of the judgment-debtor, however, entails issuance of notice to the decree-holder, and a semblance of enquiry. It is only when the decree-holder admits the settlement, that the satisfaction can be recorded. After considering the oral and documentary evidence, the Executing Court took the view, that the settlement arrived at between the petitioner and the respondent did not include the subject-matter of O.S.No.770 of 2002. It is only when the decree-holder admits the settlement, that the satisfaction can be recorded. After considering the oral and documentary evidence, the Executing Court took the view, that the settlement arrived at between the petitioner and the respondent did not include the subject-matter of O.S.No.770 of 2002. This Court is not at all convinced to take a different view. 8. Apart from the merits of the matter, there is an important legal angle to this case. The Limitation Act, 1963 (for short 'the Act') does not stipulate any period of limitation, within which, a decree-holder can submit the memorandum of satisfaction. However, Article 125 of the Act mandates that, a judgment-debtor must file an application for recording the settlement outside the Court, within thirty days from the date of settlement. Admittedly, the EANo.658 of 2004, filed by the petitioner, was beyond thirty days, from the date of the alleged settlement. Section 5 of the Act does not apply to these cases. Therefore, the EA658 of 2004, filed by the petitioner herein, is clearly barred by limitation, and no relief could have been granted to him. 9. The C.R.P. is accordingly dismissed. There shall be no order as to costs.