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2025 DIGILAW 1912 (KER)

Shejith v. Shabu

2025-07-09

K.NATARAJAN

body2025
JUDGMENT : K. Natarajan, J. The original petition No.1694/2022 filed by the petitioner/judgment debtor challenging the order passed by the Principal Sub Judge’s Court, Thrissur, in EA No.513/213 in EP No. 141/2014 arising out of O.S.No. 814/2013 for having dismissed the application filed by the judgment debtor under Order 21 Rule 2 CPC. 2. OP(C) No.1946/2023 was also filed by the same petitioner/judgment debtor for challenging the order of attachment issued by the same court on 05.09.2023 for attaching the property, which was previously attached and later lifted the attachment and now it is said to be in the name of one Nabeesa, the aunt of the petitioner. 3. The case of the petitioner is that the respondent/decree holder filed an EP 141/2015 for recovery of Rs. 52,06,015/- from the judgment debtor in respect of the decretal amount in O.S No.814/2013, which was an award passed by the Lok Adalath/ settlement. Initially the decree holder filed an application, and the property of the judgment debtor was said to be attached by the Execution Court, and later the judgment debtor filed an application under Order 21 Rule 2 CPC and got lifted the attachment by obtaining the NOC from the decree holder and the court also lifted the attachment. Then he is said to have relinquished his ½ share in the said property to his own aunt namely one Nabeesa. 4. It is submitted by the judgment debtor that after the lifting of the attachment, the judgment debtor relinquished the right to the Nabeesa and received Rs.20 lakhs from her, and that amount was said to be directly paid to the decree holder by the Nabeesa, who is aunt of the judgment debtor, through a cheque dated 02.08.2013. 5. Subsequently, the judgment debtor said to have paid Rs.5 lakhs by cash cheque to the PW 4, the manager of the judgment debtor. The said amount has been encashed by the Shri.Unnikrishnan and paid to the decree holder. Again, on 13.08.2013, Rs. 4 lakhs cash has been given to the decree holder. On 09.09.2013, Rs.8,00,000/- has been withdrawn by one Sri. Sreekrishnan and paid to the decree holder, on 28.09.2013 Rs.5,00,000/- has been paid to the father of the decree holder (PW6), on 22.11.2013 Rs.3,00,000/- has been paid to the decree holder through a cash cheque and Rs.4,10,000/- paid to the decree holder on different dates through cash. On 09.09.2013, Rs.8,00,000/- has been withdrawn by one Sri. Sreekrishnan and paid to the decree holder, on 28.09.2013 Rs.5,00,000/- has been paid to the father of the decree holder (PW6), on 22.11.2013 Rs.3,00,000/- has been paid to the decree holder through a cash cheque and Rs.4,10,000/- paid to the decree holder on different dates through cash. A total of Rs.49,10,000/- (Rupees forty nine lakhs and ten thousand only) has been paid to the decree holder. The entire amount has been discharged by the judgment debtor. 6. Therefore, he filed an application before the Execution Court for certification of the amounts paid by the judgment debtor to the decree holder. Initially it was objected by the decree holder as it is barred by limitation under Order 21 Rule 2 of CPC. However, the Execution Court permitted the judgment debtor to lead evidence. Accordingly, the judgment debtor lead evidence of seven witnesses, and Ext. X1 and X2 were marked. The decree holder, himself was examined as RW1. And after hearing the argument, the execution court dismissed the application filed by the judgment debtor. Accordingly, the judgment debtor filed this OP(C) No.1694 /2022 challenging the said order. 7. The case of the same petitioner in another OP(C) No. 1946/2023. Subsequently, the very same petitioner filed another petition 1946/2023, for issuance of attachment of the very same property on the ground that the petitioner already obtained an order from the Execution Court under Order 38 Rule 9 of CPC by obtaining the no objection from the decree holder and alienated the property by selling the property or relinquishing his right to his own aunt, who has an interest in the said property, by document dated 17.05.2013, and therefore, the property is already alienated by him. This Court stands in this way, therefore, the question of issuing attachment of property does not arise. 8. Hence, he challenged the order of the attachment before the said Court by filing the application under Order 21 Rule 11 of CPC, which came to be dismissed. Accordingly, he has filed this petition. 9. Heard the arguments of learned counsel for the petitioner and the learned counsel for the respondent. 10. The learned counsel for the petitioner in OP(C) No.1694/2022 has vehemently contented that the Execution Court committed error in rejecting the evidence of the PW 1 to 6. Accordingly, he has filed this petition. 9. Heard the arguments of learned counsel for the petitioner and the learned counsel for the respondent. 10. The learned counsel for the petitioner in OP(C) No.1694/2022 has vehemently contented that the Execution Court committed error in rejecting the evidence of the PW 1 to 6. Even though there was an admission made by the decree holder for receipt of some amount through cash cheque by his own father. And though Ext.X1 reveals the decree holder received Rs.4 lakhs through cash cheque whose name as Sabu, though his name is Shabu. But that cannot be discarded. 11. Apart from that, Rs.20 lakhs was paid by the aunt of the petitioner/judgment debtor Nabeesa to the decree holder through aunt of the decree holder that was reflected in the Ext. X2 dated 06.08.2013. The name of the decree holder Shabu has been mentioned for receipt of Rs.20 lakhs in the bank statement. The Bank Manager was also examined as a witness. The manager of the petitioner, Sri. Unnikrishnan and another person, Sri. Sreekrishnan were examined before the Court and gave evidence that they have paid the amount to the decree holder in cash. And the petitioner gave the cheque to the Managers Unnkrishnan as well as Sreekrishnan. They withdrew the money from the bank and hand over to the decree holder and they have given evidence before the Court. 12. Such being the case, the question of discarding their evidence holding that no payment was made by the judgment debtor to the respondent/ decree holder is not correct. Therefore, the order under challenge before the Court is set aside. But it is further contented that, the petitioner filed an application and has no knowledge about the limitation of 30 days the bar for reporting the payment before the Execution Court. Therefore, merely there was a delay, that cannot be rejected as the petitioner paid the entire amount and discharging the loan. 13. The learned counsel for the petitioner in another connected case, though, seriously argued the matter in OP(C) No.1946/2023. But it is stated that this petitioner sold the property or relinquished the right over the property to his own aunt Nabeesa. Therefore, he has to protect the right of the Nabeesa. Therefore, the order under challenge is maintainable. 14. Per contra, the learned counsel appearing for the respondent/ decree holder seriously objected. But it is stated that this petitioner sold the property or relinquished the right over the property to his own aunt Nabeesa. Therefore, he has to protect the right of the Nabeesa. Therefore, the order under challenge is maintainable. 14. Per contra, the learned counsel appearing for the respondent/ decree holder seriously objected. Mainly on the ground of limitation under Order 21 Rule 2 of CPC. The learned counsel has contended that as per Article 125 of the Limitation Act , the judgment debtor shall obtain the certificate of discharge of the loan settled out of the Court within 30 days. But the applications came to be filed for certification in the year 2017. That is not permissible and is certainly beyond the limitation. Therefore, the Court cannot issue certificate under Order 21 Rule 2 of CPC. Therefore, the filing of the application for issuing a certificate is not maintainable and further contended even on merits, it is vehemently argued, though, the amount said to be paid by the judgment debtor to the respondent there is no direct evidence no receipt was found, signatures of the respondents was not obtained on the document and the documents X1 and X2 it will otherwise than, which is fixed where the amounts were drawn by the very witnesses from the bank. There is no documentary evidence to show that amounts were actually paid to the decree holder. And even otherwise Rs.20 lakhs transferred to the decree holder by the Nabeesa, but in the evidence of Nabeesa it was revealed, she has received Rs.23 lakhs from the Jashi K Moideen on 05.07.2013 and thereafter the Nabeesa has stated that she has given Rs.20 lakhs cheque to the Mr.Jashi K. Moideen but not to the decree holder. Even other wise, if there is any transaction between Mr.Jashi and this Nabeesa, that cannot be considered. Even, it is considered, Rs.20 lakhs transferred to the account of the decree holder on 06.08.2013 but it is not certified by the court within 30 days, therefore, it cannot be considered. Even the relinquished deed A1 of the petitioner in favour of Nabeesa was mentioned only six lakhs was issued by him and he cannot say that he has issued Rs.20 lakhs and paid to the decree holder. Even the relinquished deed A1 of the petitioner in favour of Nabeesa was mentioned only six lakhs was issued by him and he cannot say that he has issued Rs.20 lakhs and paid to the decree holder. The document is fixed for 6 lakhs and the oral evidence cannot be supersede the document evidence in view of the Section 92 of the Evidence Act . 15. Therefore, considering all these aspects it is contented, there is no case by the petitioner for either issuing certificate in view of the limitation and adjustment of the amount paid by the petitioner, hence, prayed for dismissal of the petition. 16. In spite of the another case, OP(C) No. 1946/2023, the learned counsel for the respondent has contented that as per the very contention of the judgment debtor he has already alienated the property to his aunt Nabeesa as on 17.05.2013 itself. Once he has lifted the attachment of the property and alienated to the Nabeesa, he has lost the interest over the said property. Such being the case, he has no right to challenge the order of attachment passed by the Court as the property owner Nabeesa is the right to file any object on application or interlocutory application before the Execution Court. Therefore, the petitioner has no locus standi to challenge the order of attachment of the said property. Hence, prayed for dismissal of the petition. 17. Having heard the arguments and perused the records the point that arise for consideration is, i) Whether the order under challenge passed by the court below dated 25.06.2022 is call for interference? ii) Whether the order dated 05.09.2023 in EP No. 141/2024 is also call for interference? 18. Having heard the arguments and perused the records, it is not in dispute that the respondent was the decree holder and the petitioner was the judgment debtor and EP came to be filed for realisation of money. It is also not in dispute the property was already attached or created mortgage on the decree passed in the lok adalath award. 19. Subsequent filing of EP the judgment debtor filed application under Order 21 Rule 2 of CPC and got lifted the attachment by obtaining NOC from the very decree holder and said to be alienated the property to his own aunt Nabeesa as per the documents dated 17.05.2013. 20. 19. Subsequent filing of EP the judgment debtor filed application under Order 21 Rule 2 of CPC and got lifted the attachment by obtaining NOC from the very decree holder and said to be alienated the property to his own aunt Nabeesa as per the documents dated 17.05.2013. 20. As per the contention of the judgment debtor, the Nabeesa paid Rs.20,00,000/- for relinquish the right of the judgment debtor and the said amount was directly paid to the decree holder on 06.08.2013. It is the case of the judgment debtor, on the various date more than Rs.49,10,000/- paid to the decree holder. However, it is not in dispute, the EP came to be filed by the decree holder in 2014. The judgment debtor appeared before the court and the judgment debtor filed application on 03.07.2013 under Order 38 Rule 9 of CPC for lifting the attachment. The document is produced herein as Ext. P2 in OP(C) No. 1946/2023 where it is already mentioned the very decree holder stated no objection given for lifting the attachment. It appears subsequently the attachment was lifted by the Execution Court and the judgment debtor said to be relinquished his right to Nabeesa by executing a document on 17.05.2013. 21. It is not in dispute the document is produced as A1 where the amount of Rs.6 lakhs said to be paid by Nabeesa to the judgment debtor. However, there is a document available in Ext.X1 that Rs.20,00,000/-said to be transferred to the decree holder from the Nabeesa. it is also not in dispute, as per the evidence of Nabeesa, she has received Rs.23,00,000/- plus amount from one Mr.Jashi Moideen and subsequently cheques said to be given to Mr.Jashi K. Moideen by Nabeesa. 22. However, the trial court considered the evidence on all the PW1 to 7 where the decree holder denied the payment received by him and also the cash amount paid to he decree holder. Though, some of the documents and statement of the bank accounts reveals the witnesses of the petitioner/ judgment debtor received cash or withdrawn the cash from the Banks but there is no evidence to show these amounts were actually paid to the decree holder on the said date. Though, some of the documents and statement of the bank accounts reveals the witnesses of the petitioner/ judgment debtor received cash or withdrawn the cash from the Banks but there is no evidence to show these amounts were actually paid to the decree holder on the said date. And admittedly no receipts were obtained from the decree holder for having paid so much amounts except two documents that is two entries in the bank statement 20 lakhs paid by the Nabeesa to the decree holder on 06.08.2013 and some Rs.4 lakhs encahed by the one Sabu. 23. The counsel for the respondent seriously disputed that Sabu is not the decree holder his name is Shabu. It is also contented by the respondent counsel if even a single mistake in the spelling of any word the banker will not allow to encash the amount. Admittedly, if any corrections or mistake in the names the banker will not allow cheques or cheque leaves. Therefore, the contention of the judgment debtor counsel that the amount of Rs. 4 lakhs paid to the decree holder Sabu through cheque cannot be accepted. 24. That apart this 20 lakhs was said to be transferred by Nabeesa through her account to the decree holder but the document A1 speaks otherwise that 6 lakhs has been mentioned as the price in the documents. Therefore, as per Section 92 of the Evidence Act , the oral evidence cannot over read or supercede the documentary evidence. Therefore, the contention of the petitioner that he received 20 lakhs by selling the property or releasing the right to his aunt and received 20 lakhs and then paid to the decree holder cannot be accepted. 25. That apart though the PW6, father of the decree holder said to be admitted he has received Rs. 4 lakhs on 28.09.2013 said to be admitted in the evidence by the father of the decree holder. But all these payments were not brought to the notice of the Execution Court by the petitioner for having discharge loan or paid any part payment towards the decreetal amount to the decree holder. 26. As per order 21 Rule 2 of CPC and Article 125 of the Limitation Act , the judgment debtor is required to get a certification within 30 days from the payment made by him. 26. As per order 21 Rule 2 of CPC and Article 125 of the Limitation Act , the judgment debtor is required to get a certification within 30 days from the payment made by him. In this aspect the learned counsel for the respondent relied upon the judgment of the coordinate bench of this Court reported in [Manu/ KE/ 0821/ 2009] in the case of Salu Varghese v. Prabhakaran . The coordinate bench of this court in a similar case extensfully considered Order 21 Rule 2 of CPC and Rule 3 of CPC by relying upon the previous judgment of the another coordinate Bench in the case of Joseph v. Kanakam passed in C.R.P No. 328/2001 reported in MANU/KE/0552/2002 judgment dated 22.11.2002 and the judgment of the Hon’ble Apex court, the coordinate bench of this court has held any application filed for certification under Order 21 Rule 2 of CPC beyond 30 days cannot be acceptable and therefore, the certificate cannot be issued. In view of the above said judgment and even the document of release deed also produced by the learned counsel for the respondent and verifying the same, I am of the view the application filed by the petitioner admittedly in the year 2017 beyond 3 years, even though, the counsel for the petitioner pleaded petitioner is not aware or no knowledge about the reporting the payment made to the decree holder within 30 days which cannot be acceptable. Since, the ignorance of law is not excusable, that apart it is not acceptable, the petitioner/judgment debtor has no knowledge about the filing of the execution petition by decree holder. Since, the petitioner/ judgment debtor filed an application under Order 38 Rule 9 of CPC on 3.07.2013 and got lifted the attachment of the property and subsequently he said to be executed release deed in favour his aunt on 17.05.2013 and received the amount or paid the amount. Thereby the petitioner ought to have brought to the notice of the Execution Court, for getting the certification for payment made to the respondent either through Nabeesa, his own aunt or through his managers or through the decree holder’s father who were said to be paid the amount. 27. Therefore the court cannot issue certification for making any payment to the decree holder. 27. Therefore the court cannot issue certification for making any payment to the decree holder. Though, the counsel for the respondent also contented that there was other business between the very petitioner and respondent and payments were received and made. But that cannot be go into the merits of the case since, the petition itself is barred by limitation under Article 125 of the Limitation Act . Therefore, the trial court considering all the aspects, even though, the application is barred by limitation answering the point No.1 but the trial court considered application on merits and rightly held the payments made by the petitioner/judgment debtor to the decree holder is not acceptable. 28. Accordingly, I am of the view that the order under challenge in OP(C) No.1694/2022 does not call for interference. Therefore, the petition is liable to be dismissed. 29. In respect of OP(C) No. 1946/2023 wherein the very petitioner/ judgment debtor filed application under order 38 Rule 9 of CPC on 03.07.2013 got lifted the attachment thereafter he has alienated the property by relinquish his right to his aunt Nabeesa on 17.05.2013 itself. Once he has already lost interest over the property by alienating the same with permission of the court for lifting the attachment, he has no right to file any application under Order 21 Rule 11 of CPC for lifting the attachment once again. 30. If the property is belongs to Nabeesa, the Nabeesa who said to be owner having right to file application before the execution court for challenging the order of attachment. Such being the case, once, the very decree holder by indirectly filing another application after dismissing his application by the Court on 25.06.2022 he cannot file one more application for indirectly challenging the very same order before this Court. 31. Therefore, the trial court rightly dismissed the application and this court cannot interfere in the order dated 05.09.2023. Therefore, this petition is also dismissed. Accordingly, both the original petitions are dismissed.