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2011 DIGILAW 400 (AP)

K. Veera Reddy v. Shaikshavali

2011-04-30

L.NARASIMHA REDDY

body2011
Judgment 1. The Petitioner filed O.S. No. 10 of 2005 in the Court of Principal Junior Civil Judge, Dhone, Kurnool District, against the respondents. The suit was decreed on 28.03.2005. Stating that the respondents did not discharge the obligation under the decree, the petitioner filed E.P.No.187 of 2009 under Rules 37and 38 of Order XXI C.P.C., with a prayer to send the respondent to civil prison. The 1st respondent filed counter, stating that he has paid the entire decretal amount and that the petitioner issued a receipt in acknowledgement thereof. The Village Elders are stated to have attested the receipt. It was further urged that the petitioner promised to report full satisfaction, but he did not do so. The Executing Court dismissed the E.P., through order dated 16.07.2010. Hence, this C.R.P. 2. Heard Sri Pottigari Sridhar Reddy, learned counsel for the petitioner. Though the respondent is served with notice, he has not chosen to enter appearance. 3. The decree obtained by the petitioner, against the respondents, has become final. After waiting for about for 4 years, the petitioner filed the E.P. for arrest of the 1st respondent. The 1st respondent pleaded full satisfaction of the decree. After recording their oral evidence of PW.1 and RW.1 and documentary evidence in the form of a receipt marked as Ex.R.1, the trial Court dismissed the E.P., holding that the decree was discharged by the 1st respondent. 4. The manner in which the satisfaction of a decree is to be recorded, is provided for under Rule 1 of Order XXI C.P.C. Wherever payment of amount under the decree is made to the decree-holder out of Court, it is required to be certified as per Rule 2. It reads: “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 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 or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.” 5. From a perusal of this, it is clear that the judgment-debtor is under obligation to ensure that the adjustment or payment pleaded by him is recorded by a Court. Though the principal obligation is on the decree-holder to report compliance, the judgment-debtor is equally under obligation, to take necessary steps, particularly in view of the fact that no-recording of satisfaction would adversely affect him more, than the decree-holder. Sub-rule (3) places a categorical prohibition against the Executing Court from accepting any adjustment or payment, unless it has been certified or recorded. 6. Assuming that the payment pleaded by the 1st respondent is true, the Executing Court ought not to have taken the same into account. The reason is that it was not recorded by it, as provided for under Rule 2 of Order XXI C.P.C. 7. If in fact the petitioner received the decretal amount, the 1st respondent can file a suit for recovery of the same with interest. The reason is that it was not recorded by it, as provided for under Rule 2 of Order XXI C.P.C. 7. If in fact the petitioner received the decretal amount, the 1st respondent can file a suit for recovery of the same with interest. In case the suit is filed before any further steps are taken in the E.P., the enquiry into the E.P. can be stayed under Section 10 of C.P.C. If it ultimately emerges that the respondent paid the amount covered by the decree to the petitioner herein, the former shall be entitled to exemplary costs in the suit as well as in the E.P. No one can be permitted to take advantage of the technicalities of law and deliberately deceive others. Law is never intended to be used as tool to enrich oneself unduly. The petitioner has to keep this aspect in view, before he takes further steps in the E.P. 8. The view taken by the Executing Court, in the instant case, cannot be sustained in law. Hence, the C.R.P. is allowed and the order under revision is set aside. The trial court shall decide the matter afresh, in accordance with law, and keeping in view, the observation made above. There shall be no order as to costs.