C K XAVIER Vs. BHAGARAJ SINGH

JUDGEMENT

(1.) This appeal by the defendant came up for hearing before us under O.41 R.11 of the CPC. We sent for the records of the case from the lower court, and we are disposing of the appeal after hearing counsel for the appellant and after perusing the records in the case.

(2.) Defendant is the appellant. He obtained a decree against the respondents plaintiffs in O. S. No. 64 of 1978, on the file of the Subordinate Judge, Thodupuzha for recovery of the amount due to him from the respondents, namely Rs. 10,000/- and interest thereon due on hypothecation of their cardamom estate. The suit was decreed for an amount of Rs. 24,100/-. While so, respondents were invited for the marriage of the appellant's son. The respondents then sought a settlement of this claim from the appellant and ultimately the matter was settled between the parties by the appellant receiving an amount of Rs. 18,000/- on 30-7-1960, and executing Ext. A1 receipt in acknowledgement thereof. Despite receipt of the money the appellant applied for execution of the decree in O. S. No. 64 of 1978 for an amount of Rs. 33,045/- on 17-11-1981. The respondents objected to the execution, but were not successful. The court declined to accept their objection on the ground that the payment and settlement were not duly certified under O.21R.2 CPC The respondents therefore, claimed that the appellant had acted in violation of his legal obligation to certify the payment to court. They claimed that they have the right either to get a declaration that the decree in O. S. No. 64 of 1978 has been fully satisfied or to get back the amount of Rs. 18,000/- with interest at the rate of 12 percent per annum. Respondents issued registered notice on 16-7-1983 requesting either certification of the payment and settlement in court or for repayment of the amount paid under Ext. Al with interest at 12 percent per annum. There was no reply. The issue of the said notice is evidenced by the postal receipt Ext. A2 and the postal acknowledgement Ext. A3. Receipt of the notice is also admitted by the appellant as D.W.1. The suit was laid for a declaration that the decree in O. S. No. 64 of 1978 is fully satisfied and in the alternative directing the appellant to repay Rs. 18.000/- to the respondents with interest at 12 percent per annum till realisation of the amount.

(3.) The defendant contested the claim with his plea that there was no settlement of the claim, that the receipt Ext. Al produced along with the plaint was a cooked up document and that the suit was but another attempt on the part of the plaintiffs to stall the execution of the decree in O. S. No. 64 of 1978. The defendant also raised a plea that the suit was barred under the provisions of O.21R.2 of the C. P.C. There was however, no contention in the written statement regarding the plaintiff's entitlement to interest if the amount of Rs. 18,000/- was bound to be repaid, or about the rate of interest.