POORAN CHAND Vs. JAIN METAL INDUSTRIES

JUDGEMENT

(1.) The respondent-Jain Metal Industries Limited obtained a decree for Rs. 1198.25 against the petitioner/defendant and filed a petition for execution of the decree in the court of Sub Judge, 1st Class, Delhi. An application was filed by the petitioner/judgment debtor under Order 21 Rules I and 2 of the Civil Procedure Code . praying that the satisfaction of the decree be recorded and the application of the decree holder for execution be dismissed In this application, it was submitted by the judgment debtor that the decretal amount was paid to Sri Pal Jain who was one of the partners of the decree holder firm on 11th July 1968 and, therefore, BO amount was due from the judgment debtor in pursuance to the decree. A stamped receipt given by Sri Pal Jain was produced. In the meanwhile, however the original partnership firm which had tiled the suit for recovery of the amount had been dissolved and the partner who had stated to have received the amount was no longer a partner in this firm. The decree holder, therefore, contested the application filed by the judgment debtor and stated that former partner of the firm was colluding with the judgment debtor and no such amount was received from the judgment debtor as alleged. Insupport of this contention, reliance was placed on the last balance sheet of the partnership firm which indicated that this amount was still due from the judgment debtor. This balance-sheet was also signed by Sri Pal Jain, i.e. the former partner. The trial court sent the receipt issued by Sri Pal Jiin to the judgment debtor to the Government Press at Nasik to verify the date of issuance of the stamp fixed on the receipt in which it was reported that stamp was issued on 17.4.1967. Parties also lead oral evidence in support of their respective contentions, however the trial court disbelieved the story of the judgment debtor by drawing adverse inference on the ground that the judgment debtor bad failed to produce his account books and had also not appeared in the witness box himself to prove the payment. The First Appellate Court confirmed this fiding and dismissed the appeal. This civil revision is direted under Section I !5 of the Code of Civil Procedure against this order in appeal dated 25th April 1977.

(2.) It was submitted by the learned counsel for the petitioner that since the receipt was issued by a former partner for and no behalf of the firm prior to the dissolution of the firm, the decree holder could not claim the amount for the second time and since the genuineness of the receipt was not challenged by the partner himself who bad come in the witness box and stated that the amount was received, it was not necessary for the petitioner to produce his account books or come and depose that the amount was paid by him to decree holder and thus both the court below were not right in drawing adverse inference against the petitioner on that ground.

(3.) On behalf of the respondents, it was contended that since the decree bolder in his reply to the application under Order 21 Rules I and 2 had categorically alleged that the former partner of the firm was colluding with the judgment debtor, it was incumbent upon the judgment debtor to produce his account books to prove that the amount was paid to the decree holder in satisfaction of the decree. Learned counsel further submitted that on the dissolution of the firm, the recoveries to be made by the firm were assigned to the other partners and when the accounts between the partners were settled on 31st July 1968, this decretal amount was still shown outstanding from the judgment debtor and this position was confirmed by Sri Pal Jain by affixing his signatures on the accounts. Learned counsel, therefore, submitted that since a specific allegation was made that Sri Pal Jain, the former partner and the judgment debtor have joint bands, it was incumbent upon the judgment debtor to prove the payment by further supporting evidence. This he could do either by producing his own books of accounts or at least examining himself. The petitioner having failed to do that the courts below had rightly inferred that the payment was not made.