BABULAL WALCHAND JAIN Vs. PANDURANG VITHAL PINGLE

JUDGEMENT

(1.) THIS writ petition is filed for a writ of certiorari for quashing the order which has been passed by executing Court (4th Jt. Civil Judge, S. D. , Pune) dated 29-9-1987, by which the learned Judge recorded the payment of Rs. 2002. 50 as payment made by respondent, judgment-debtor to the present petitioner (D. H.) by placing reliance on the balance sheet of the present petitioner which shows the amount of Rs. 2002. 50 as payable by the respondent to him as on 30th of November 1983,

(2.) A decree was put to execution. Some amount was paid by the respondent to the petitioner and there was balance of Rupees 5260. 20 recoverable by the petitioner from the respondent. The petitioner filed darkhast for recovery of that amount. The respondent took the defence that he had paid the amount out of Court to the petitioner and only amount of Rs. 2002. 50 were remaining to be paid. In view of the said contention the executing Court called the balance sheet from the Income-tax Department which was submitted by the present petitioner. The said balance sheet was, as the record shows, submitted by Income-tax department in a sealed envelope which was opened by the executing Court at the time of deciding the said Darkhast. The Court perused the said balance sheet wherein payment made by the present respondent was shown and Rs. 2002. 50 was shown as recoverable from the respondent. So the Court recorded its finding that way and that is the subject-matter of challenge in the present writ petition.

(3.) SHRI Mahmane, Counsel appearing for the petitioner, pointed out the provisions of order 21, Rules 1 and 2 which shows modes of paying money under the decree. According to Shri Mahamane, the Court should have taken into consideration the modes indicated by Rule 1 of Order 21 of C. P. C. and should have insisted for payment to be made to the petitioner by the respondent by such mode. He submitted that as it has not been done by the executing Court a writ of a certiorari be issued in favour of the petitioner and said order be quashed. Shri Deshmukh, counsel appearing for the respondent, justified the said order by submitting that the amount which has been recoverable as shown by the petitioner has been considered by the executing Court and that has been taken to be payment made by the respondent to the petitioner. Therefore, there is nothing illegal in the order which needs to be dealt with by this Court by issuing writ of certiorari.