SALU VARGHESE Vs. PRABHAKARAN

JUDGEMENT

(1.) The revision is directed against the order dated 09/10/2009 in EA No. 402 of 2000 in EP No. 557 of 1996 in OS No. 529 of 1994 on the file of the Additional Sub Court, North Paravur. Petitioner is the judgment - debtor in the above execution petition. The execution proceedings relate to the decree passed in OS No. 529 of 1994, a suit for money, and the respondents are the decree - holders. Petitioner / judgment - debtor had moved an application under O.21 R.1 and R.2 of the Code of Civil Procedure to certify the payment purported to have been made to one of the decree - holders, the 1st respondent by way of a cheque to satisfy the decree. That application, after enquiry, was dismissed by the learned Additional Sub Judge, under the impugned order. Propriety and correctness of that order is challenged in the revision.

(2.) I heard the counsel on both sides. Previously, there was a revision before this Court as CRP No. 629 of 2001 at the instance of the decree - holders when the execution Court had passed an order on the application of the judgment - debtor that there was payment of the decree debt by way of cheque as contended by him in his application and also to record full satisfaction of the decree debt. That revision was disposed by this Court by order dated 17/08/2005 setting aside the order of the execution Court and remitting the case for fresh consideration subject to the observations made. Pursuant to such remission, the disputed cheque was sent over to a forensic expert for scientific examination and the report collected is Ext. X3. Petitioner / judgment - debtor, on his side, had examined three witnesses including himself as PWs 1 to 3, and exhibited A1 and A2. On the side of the decree - holders, the 1st respondent was examined as RW 1. Towards Court exhibits, two documents were exhibited as X1 and X2 apart from X3 report. On the basis of the materials produced, the execution Court arrived at the conclusion that the payment claimed by the judgment - debtor by way of cheque is acceptable, but it is not sufficient under the rule for certification of the payment. Since there are several decree - holders, payment to one of them was not sufficient in the absence of consent and concurrence by the other decree - holders for certification of the payment of the decree debt, was the view taken by the execution Court to conclude that the request made under the application by the judgment - debtor cannot be allowed. The application was therefore dismissed. Petitioner / judgment - debtor challenge the above order contending that once payment to one of the decree - holders has been established by the materials produced in the case, that has to be treated as sufficient for certification of the payment as covered by the rule to satisfy the decree debt.

(3.) In the given facts of the case, it has become essential to advert to the backdrop of the case and most particularly what transpired earlier in the execution proceedings. In the previous order dated 17/08/2005 disposing CRP No. 629 of 2001, proceedings in execution had been adverted to with reference to the dates of enquiry on the execution application moved by the judgment - debtor and what transpired in the enquiry. It would be profitable to reproduce what has been stated with respect to the above aspect in that order, which reads thus: