RADHAKRISHNA PAI Vs. KESAVA PILLAI

JUDGEMENT

(1.) In this revision, the judgment debtors challenge the order of the executing court overruling their objection that they have already paid the amounts due under the decree to the original decree holder outside court and therefore the attaching decree holder is not entitled to realise the amounts due under the decree. The executing court found that the alleged payment not having been certified or recorded, under O.21 R.2 of the Code of Civil Procedure, the attaching decree holder was entitled to proceed with the execution even assuming that the claim of the judgment debtors was true.

(2.) The main contention raised on behalf of the judgment debtors is that the attaching decree holder is not a decree holder as defined in the Code and consequently O.21 R.2 cannot stand in the way of the judgment debtors pleading and establishing that they have already paid off the original decree holder and consequently the attaching decree holder cannot proceed with the execution. Counsel for the attaching decree holder submits that an attaching decree holder or even an assignee decree holder executing the decree can raise the contention that unless recorded by Court under O.21 R.2 of the Code of Civil Procedure, the plea that the decree has been satisfied cannot be raised. The executing Court after noticing O.21 R.1(b) and O.21 R.2 came to the conclusion that the judgment debtors are not entitled to prove a payment which is not recorded by the Court under O.21 R.2(3) of the Code. The Court also found that under Art.125 of the Limitation Act time for making an application for recording a payment is 30 days. Here the alleged payment was five years prior to the present execution petition and hence such a payment could not be recognised even if the objection were to be treated as an application under O.21 R.2 of the Code.

(3.) Strong reliance is placed by counsel for the judgment debtor on the decision of the Allahabad High Court in Ram Sodan Singh v. Ram Pargash Singh (AIR 1925 All. 123 (2)) in support of his argument Therein, the Allahabad High Court held that the definition of the term 'decree holder' as given in S.2(3) of the Code of Civil Procedure does not include an attaching creditor of the decree holder and a payment to the attaching creditor of the decree holder is not payment to the decree holder within the meaning of O.21 R.1(b). That was a case where when the decree holder attempted to execute the decree, the judgment debtor set up a plea that he had paid off the amounts to the attaching creditor of the decree holder. The Court observed: