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2011 DIGILAW 449 (PNJ)

Raminder Singh v. Kirna Devi

2011-02-03

RAM CHAND GUPTA

body2011
JUDGMENT RAM CHAND GUPTA, J.(Oral) - C.M.No.3225-CII of 2011 1. Requests for placing on record copy of order dated 9.9.2003, Annexure P1, passed by learned Executing Court. 2. The same is taken on record subject to all just exceptions. 3. Application stands disposed of accordingly. Civil Revision No.8175 of 2010 4. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 20.9.2010 passed by learned Civil Judge, Junior Division, Sunam, and for staying further proceedings of the execution application titled as Sita Ram v. Rajinder Singh etc. pending in the Court of Civil Judge, Junior Division, Sunam. 5. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Executing Court. 6. Facts relevant for the decision of present revision petition are that a decree for recovery of Rs.52,000/-was passed in favour of respondent-Sita Ram, predecessor in interest of respondents and against the present petitioner-judgment debtor. As present petitioner-judgment debtor failed to satisfy the decree, execution petition was filed by respondentdecree holders. In the execution petition property belonging to petitioner-judgment debtor was also attached. However, during pendency of the said earlier execution petition, petitioner-judgment debtor had shown his inability to make the payment of the decretal amount in lump sum and requested for making the payment in installments of Rs.2,000/-per month by filing objection petition. The decree-holder agreed to the offer of present petitioner-judgment debtor and learned Executing Court passed the following order on 9.9.2003, which has been placed on record by learned counsel for the petitioner as Annexure P1, which reads as under:- “Ld. counsel for DH made a statement that he has no objection if the JD's may be directed to make the payment of decretal amount in installments of Rs.2000/-per month as pleaded by them in their objection petition. The JD filed objection petition in which they have pleaded in para no.7 that they are always ready to make the payment of decretal amount in installments which should be Rs.2000/- per month. Therefore, in view of the statement as made by the ld. Counsel for DH, the execution application is disposed of with a direction that JD's will make the payment of decretal amount to the DH in monthly installments of Rs.2000/-each and Ist installment will start from 1.10.2003. Therefore, in view of the statement as made by the ld. Counsel for DH, the execution application is disposed of with a direction that JD's will make the payment of decretal amount to the DH in monthly installments of Rs.2000/-each and Ist installment will start from 1.10.2003. In case the JD fails to pay even a single monthly installment, the DH is entitled to recover the whole outstanding decretal amount alongwith interest as per decree in lump sum from JD by re-course of law. The property of JD already attached in this case is ordered to be released forthwith. Certified copy of decree-sheet dated 8.6.95 be returned to the DH against proper receipt subject to filing photostat copies of the same. File be consigned to record room.” 7. However, petitioner-judgment debtor even did not comply with the said order and hence another execution petition, i.e., the present one was filed by respondent-decree holder for execution of the decree. During pendency of second execution petition, objection was filed by petitioner-judgment debtor that there was another compromise between the parties out of the Court and according to the compromise, a sum of Rs.40,000/-was paid to decree holder on 8.12.2003 and another sum of Rs.60,000/-was paid on 7.2.2004. He has placed reliance upon the alleged compromise. Learned Executing Court sought reply of respondent-decree holder in this objection petition, who denied having received any amount and having executed any compromise. Rather the plea was taken that the same is a forged and fabricated document. Learned Executing Court framed issues on the said objection petition and after recording evidence of both the parties arrived at a conclusion that no such compromise has been executed by respondent-decree holder and the version of petitioner-judgment debtor was found false and hence, the objection petition was dismissed by observing as under:- “Further, JDs in rebuttal have examined Smt.Rana Bansal another handwriting and fingerprints Expert as JDW5, who has given her report Ex.JD2 and additional report Ex.JD-25. She has opined that the disputed signatures and the standard signatures are made by one and the same person. She was cross-examined at length by the ld. Counsel for the decree holder and even in the photographic charts, she has mentioned about the similarity between the disputed and standard signatures. She has opined that the disputed signatures and the standard signatures are made by one and the same person. She was cross-examined at length by the ld. Counsel for the decree holder and even in the photographic charts, she has mentioned about the similarity between the disputed and standard signatures. Since the experts examined by both the parties are contradictory to each other regarding their opinion, therefore, this Court is competent to give its own finding as per Section 73 of the Evidence Act and in view of this Court, the report given by Dr.Inderjit Singh AW2 which is Ex.D1 on file appears to be more logical and no proper contradictions or similarities have been given in the photographic charts by the expert examined by the JDs namely Smt.Rana Bansal examined as JDW5. So, in view of this Court, there are fundamental differences between the disputed and standard signatures which are visible even by naked eye and therefore the report given by JDW5 Smt.Rana Bansal is discarded and the report of AW2 Dr.Inderjit Singh which is Ex.D1 is accepted. So, in these circumstances it is proved that the alleged compromise JW1 is forged and fabricated one and does not bear the signatures of DH Sita Ram. Further the provisions of Order 21 Rule 2 of CPC reads as under:- `Payment out of Court to decree holder:- 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 it is to execute the decree and the court shall record the same accordingly' and the said certification is to be obtained within period of 30 days as per Article 125 of the Limitation Act and in this regard I am also supported by the authority 2000 (1) Civil Court Cases page 1, Supreme Court of India titled as Badamo Devi and ors. v. Sagar Sharma, and the authorities cited by the learned counsel for the Jds 2010 (2) Civil Court cases, page 1, Supreme Court of India and AIR 1941, Lahore page 55 are not applicable to the facts of the case. v. Sagar Sharma, and the authorities cited by the learned counsel for the Jds 2010 (2) Civil Court cases, page 1, Supreme Court of India and AIR 1941, Lahore page 55 are not applicable to the facts of the case. So, in view of the order 21 Rule 2 of CPC and Article 125 of the Limitation Act, the certification was to be obtained by the Jds for out of court payment from the executing Court within 30 days from the payment and as per version of the Jds they paid Rs.40,000/-to the DH on 8.12.2003 and further Rs.60,000/-on 7.2.2004, whereas the execution was filed on 16.12.2003 and the Jds filed the objections on 18.3.2004, so they failed to get the payment certified from the executing Court within the period of 30 days from the alleged out of court payment by them to the decree holder. So, in these circumstances the agreement dated 7.2.2004 is forged and fabricated and no reliance can be placed upon the same. The JDs have not made any payment of decretal amount to the DH. Hence, both these issues are decided against the JDs and in favour of the decree holder.” 8. It has been contended by learned counsel for the petitioner that learned Executing Court has not properly appreciated the evidence adduced by present petitioner-judgment debtor especially statement of JDW2. 9. However, taking into consideration the conduct of judgment debtor, the plea cannot be accepted. A detailed order has been passed by learned Executing court giving reasons as to why the evidence of witnesses examined by JD was not found worthy of reliance. Hence, it is not such a case in which any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order. 10. Moreover, there is another aspect of this case. Order 21 Rule 2 of the Code deals with payment out of Court to decree holder. Hence, it is not such a case in which any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order. 10. Moreover, there is another aspect of this case. Order 21 Rule 2 of the Code deals with payment out of Court to decree holder. It is pertinent to reproduce the said provision of law, which reads as under:- “Payment out of court to decree holder (1) Where any money payable under a decree of any kind is paid out of the 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 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 or adjustment which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree.” 11. Petitioner-judgment debtor never applied before learned Executing Court within period of limitation as prescribed under Article 125 of the Limitation Act for obtaining certificate regarding payment for discharge of decree out of court, despite specific order of learned Executing Court, Annexure P1. 12. Petitioner-judgment debtor never applied before learned Executing Court within period of limitation as prescribed under Article 125 of the Limitation Act for obtaining certificate regarding payment for discharge of decree out of court, despite specific order of learned Executing Court, Annexure P1. 12. Hence, on this ground as well, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in dismissing the objection filed by petitioner-judgment debtor and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 13. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 14. Hence, the present revision petition is hereby dismissed being devoid of any merit.