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2023 DIGILAW 645 (AP)

Kathika Nageswara Rao, S/o. Subba Rao v. Mulasa Satyanarayana (Died), S/o. Suryanarayana

2023-03-28

B.V.L.N.CHAKRAVARTHI

body2023
ORDER : This Civil Revision Petition is directed under Section 115 of the Civil Procedure Code, 1908 (for brevity ‘CPC’) against the Order, dated 15.09.2015 in E.P.No.57 of 2014 in O.S.No.434 of 1993 on the file of the II Additional Senior Civil Judge, Kakinada, where under the execution petition filed under Order XXI Rule 54 of the Code of Civil Procedure, 1908 against judgment-debtor No.7, for issuance of notice under Order XXI Rule 54 of CPC and attachment, was ‘Allowed’. 2. Heard Sri P.Ravi Shanker, learned counsel for revision-petitioner/judgment-debtor No.7 and Sri E.V.V.S.Ravi Kumar, learned counsel respondent No.1/decree-holder. 3. The learned counsel for revision-petitioner/judgment-debtor No.7 would submit that the Trial Court committed material irregularity by not recognizing the payment made by the revision-petitioner/judgment-debtor No.7 to the respondent No.1/decree-holder towards full and final settlement of the decree debt and ordered for execution. 4. The learned counsel for respondent No.1/decree-holder would submit that in view of Rule 1, 2 and 3 of Order XXI of CPC and Article 125 of the Limitation Act, 1963, the Trial Court did not commit any material irregularity. 5. In the light of the above rival contentions of the revision petitioner/ judgment-debtor No.7 and respondent No.1/decree-holder, the point that arises for consideration is:- “Whether the Executing Court committed any irregularity in the Order dated 15.09.2015 passed in E.P.No.57 of 2014 in O.S.No.434 of 1993?” 6. POINT : - The contention of revision-petitioner/judgment-debtor No.7 is that he paid an amount of Rs.2,90,000/- on 08.04.2003 to the respondent No.1/decree-holder towards full and final settlement of the decree amount and the respondent No.1/ decree-holder issued a receipt acknowledging the payment; but the respondent No.1/decree-holder suppressing the payment, filed the execution petition after eleven (11) years to gain unlawfully. 7. The contention of the respondent No.1/decree-holder is that the revision-petitioner/judgment-debtor No.7 did not pay any amount and the respondent No.1/decree-holder did not issue any receipt as claimed by the revision-petitioner/ judgment-debtor No.7. 8. This Court in P.Narasaiah vs. P.Rajoo Reddy, AIR 1989 AP 264 , wherein the difference of opinion between two learned judges sitting in a Division Bench, the Civil Revision Petition was referred to a third Judge. In effect, this judgment is as efficacious as the judgment of a Full Bench. Justice Amareswari, at para-No.4, held as under: “Where there is consensus between the parties, Order XXI Rule 2 of CPC applies. In effect, this judgment is as efficacious as the judgment of a Full Bench. Justice Amareswari, at para-No.4, held as under: “Where there is consensus between the parties, Order XXI Rule 2 of CPC applies. But, if any question arises as to payment or satisfaction of the decree, it has to be decided by the executing Court and a separate suit is got maintainable. In the present case, the decree- holder filed an application for execution, the judgment-debtor contested the application saying that the decree is satisfied and the amount is paid. There is no consensus or agreement between the parties and the payment is in question. This is a matter which relates to execution, and falls within the scope of Section 47 of CPC which clearly directs that the said question should be decided by the executing Court and not by way of a separate suit. Section 47 of CPC is designed to prevent multiplicity of proceedings and the power of the Court under Section 47 of CPC is not controlled by Order XXI Rule 2 of CPC which deals with a separate situation altogether. Hence, the order of the Court below is set-aside and the revision is allowed. The executing Court shall proceed first to determine the question whether any payment was made by the judgment-debtor towards satisfaction of the decree before ordering attachment of sale of the properties.” Differing with the view taken by Justice Amareswari, Justice Upendralal Waghray, at para-No.3 held as under: “Order XXI Rule 2 of CPC has been amended by the Amending Act, 1976 by making the provisions more stringent by requiring a documentary evidence of payment or adjustment and, at the same time, the scope has been widened by including adjustment of decrees of all kinds. The provisions of Order XXI Rule 2 of CPC and the Limitation Act, 1963 have been made to avoid fraudulent pleas and to give finality to question of adjustment of decree at the earliest. The provisions cannot be said to be unreasonable. Once the parties have been litigating in the Court and their controversy is decided by a decree, it is but natural to expect that any settlement reached should be informed to the executing court immediately. The provisions cannot be said to be unreasonable. Once the parties have been litigating in the Court and their controversy is decided by a decree, it is but natural to expect that any settlement reached should be informed to the executing court immediately. The executing Court, while exercising its jurisdiction under Section 47 has to keep in view the procedural requirements of Order 21 Rule 2 as well as the provisions of the Limitation Act in Article 125. It cannot be said that there is any conflict in the two provisions or that Order XXI Rule 2 of CPC will not have any impact on the power of the executing Court while exercising jurisdiction under Section 17.” On reference, in view of difference of opinion between learned Judges, Justice Amareswari and Justice Upendralal Waghray, Justice Jeevan Reddy at para-No.9 held as under: “Rule 1 and 2 of Order XXI of CPC make detailed provisions providing the manner in which the payment or adjustment outside the Court should be made. They also provide that if any such payment or adjustment is made outside the Court it should promptly be got recorded and certified by the Court which is competent to execute the decree either at the instance of the decree-holder or the judgment-debtor. It also declares that a payment or adjustment made outside the Court which has not been certified or recorded in accordance with Rule 2, shall not be recognised by any Court executing the decree. Rule 2 of Order XXI of CPC does not deal with the payment or adjustment of the decree in Court, i.e., in execution proceedings taken by the decree holder. Article 125 of the Limitation Act, 1963 provides a period of 30 days for applying to the Court for recording an adjustment or satisfaction of the decree, from the date of payment or adjustment. There is no provision for extending the said period. Since by virtue of sub-rule (3) of Rule 2 of Order XXI of CPC “a payment or adjustment, which has not been certified or recorded as aforesaid (in accordance with Rule 2) shall not be recognized by any Court executing the decree”, any payment? or adjustment not certified or recorded in accordance with Rule 2 of Order XXI of CPC is no payment or adjustment in law. or adjustment not certified or recorded in accordance with Rule 2 of Order XXI of CPC is no payment or adjustment in law. Any such payment or adjustment cannot be recognized by the Court executing the decree-unless, of course, the decree holder himself admits the same. Therefore, when a decree-holder takes out execution, the judgment-debtor will not be entitled to plead—if by the date of his plea a period of thirty days has expired from the date of payment or adjustment, as the case may be—that he has paid the money due, or has otherwise adjusted the decree, outside the Court. It is, no doubt, true that the use of the expression “may” in sub-rule (2) of Rule 2 has given room for controversy and argument but, the said expression has to be construed and understood in the light of sub-rule (3) of Rule 2, and if so, read, the expression “may? is liable to be construed and understood as “shall?. By placing this construction no inconsistency arises between Order XXI, Rule 2 and Section 47. When Section 47 declares that all questions relating to execution, discharge or satisfaction of a decree shall be enquired into and determined only by the Court executing the decree and not by a separate suit, it does not mean that the provisions in Order XXI Rule 2 of CPC read with Article 125 of the Limitation Act, 1963 should be ignored. Indeed, one should read them together harmoniously. As stated herein before, the several Rules in Order XXI of CPC supplement, illustrate and elaborate the provisions contained in Part-II of the Code. The object behind sub-rule (3) of Rule 2 of Order XXI of CPC is to shut out any plea of payment, or adjustment, which is not promptly got recorded and certified under the said Rule. The idea is to preclude any such pleas and leave no room for them.” 9. The learned Trial judge on facts held that the judgment-debtor No.7 failed to prove the above plea. The learned Trial judge further held that alleged payment made by judgment-debtor to the decree-holder outside the Court was not recorded in thirty (30) days as per Order XXI Rule 3 CPC. 10. Article 125 of the Limitation Act, 1963 is as under: 125. To record an adjustment or satisfaction of a decree Thirty days When the payment or adjustment is made. 11. 10. Article 125 of the Limitation Act, 1963 is as under: 125. To record an adjustment or satisfaction of a decree Thirty days When the payment or adjustment is made. 11. Therefore, Article 125 of the Limitation Act, 1963 provides a period of 30 days for applying to the Court for recording an adjustment or satisfaction of the decree, from the date of payment or adjustment. 12. Under sub-rule (3) of Rule 2 of Order XXI of CPC “a payment or adjustment, which has not been certified or recorded as aforesaid in accordance with Rule 2) shall not be recognized by any Court executing the decree. Hence, any payment’ or adjustment not certified or recorded in accordance with Rule 2 of Order XXI of CPC is no payment or adjustment in law. 13. In the case on hand, the alleged payment or adjustment was not recorded within the period of limitation prescribed under Article 125 of the Limitation Act, 1963. 14. In the light of above legal position, this Court did not find any irregularity in the Order passed by the Trial Court. Therefore, the revision-petition is liable to be dismissed. 15. In the result, the Civil Revision Petition is ‘Dismissed’. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.