MANURAJ CHANDRAKANT BABAR Vs. BAPUSAHEB BABASAHEB DESHMUKH

JUDGEMENT

(1.) THE petitioner is the son of one Shri Chandrakant Rajmal Babar, who filed a Regular Civil Suit No. 1468 of 1978 in the Court at Solapur against the respondent for recovery of a sum of Rs. 4000/- with interest. The suit was decreed. The petitioner filed Regular Darkhast No. 245 of 1987 in the Civil Court at Solapur for execution of the said decree. Execution proceeding was initiated and in all a sum of Rs. 4,000/- was recovered from the respondent. The said amount was paid by the respondent on different dates. The last payment was made on 18th October, 1988. On that day the respondent-judgment debtor filed an application before the executing Court alleging that the petitioner-decree holder had agreed to accept a sum of Rs. 4,000/- in full and final satisfaction of the decree. Prayer was made for dismissal of the execution petition or marking the darkhast as satisfied in the light of the above statement. A notice was issued to the petitioner-decree holder on the said application. The petitioner denied the allegations of compromise and stated that a sum of Rs. 7,764/- was due to him in terms of the decree out of which only a sum of Rs. 4,000/- has been realised and a sum of Rs. 3,764/- remained unpaid to be recovered. The executing Court i. e. Jt. Civil Judge, Junior Division, Solapur, by its order dated 14th October, 1992 decided the application of the respondent-judgment debtor alleging compromise, for consideration. The judgment-debtor and the decree holder both were examined. Though no evidence could be produced by the judgment-debtor in support of the alleged claim of compromise with the decree holder, the executing Court observed that the petitioner decree holder had given his say after about one year of the filing of the application. From this fact, the learned executing Court inferred that there was no evidence on record on behalf of the decree-holder to discard the evidence of the judgment-debtor and accordingly came to the conclusion that the compromise took place between the parties and accordingly the judgment debtor paid Rs. 4,000/- and in that view of the matter, the decree-holder was not entitled to get the remaining amount. It is this order of the executing Court which has been challenged by the petitioner-decree-holder by way of this revision petition.

(2.) THE learned Counsel for the petitioner submits that there is not even an iota of evidence or any material to show that there was any compromise between the judgment-debtor and the decree-holder as alleged. It is further stated that the amount of Rs. 4,000/- was paid by the judgment-debtor in instalments on different dates to the Baillif in part satisfaction of the decree. There was no compromise as alleged at any point of time. The learned Counsel referred to the provisions of Order XXI, Rule 2 which provides that where any money payable under a decree is paid out of Court or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree-holder shall certify such payment or adjustment to the executing Court and the executing Court shall record the same accordingly. Sub-Rule (2) of the said rule also enables the judgment-debtor to inform the Court of such payment or adjustment. Such application has to be made in writing supported by an affidavit of such payment or adjustment. The judgment-debtor has also to apply to the Court to issue a notice to the decree-holder to show-cause as to why such payment or adjustment should not be recorded as certified. If after service of such notice, the decree-holder fails to show-cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. Sub-Rule (3) of the said Rule makes it further clear that a payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. The learned Counsel submits that in the instant case the petitioner-decree holder has not certified to the executing Court about the satisfaction of the decree. It is the judgment-debtor who has made an application as contemplated by sub-rule (2) of Rule 2 which again is not in terms of the said sub-rule which requires that such an application to be supported by an affidavit of such payment or adjustment. It is further stated by the learned Counsel that sub-rule (2) enables the executing Court to record the payment or adjustment certified only if after service of the notice decree holder fails to show-cause why payment or adjustment should not be recorded as certified. In the instant case, admittedly the decree-holder in compliance of the notice from the executing Court appeared before the Court and denied the payment or adjustment alleged by the judgment debtor. The executing Court went on to the extent of examining both the judgment-debtor and the decree-holder on oath but there also the decree-holder reiterated his contention denying the alleged compromise or settlement. In such a situation, the Court could not have recorded the payment or adjustment as certified and in the absence of such record, no adjustment or payment can be recognised by the executing Court.

(3.) IN this case, after a sum of Rs. 4,000/- was recovered by the Baillif from the judgment-debtor, the judment-debtor made an application to the Court stating that there was a compromise between the parties out of Court whereby the decree-holder had agreed to accept the amoumt of Rs. 4,000/- in full and final satisfaction of the decree. No documentary or other evidence could be produced in support of the above statement. The petitioner-decree holder denied the above contention of the judgment-debtor and reiterated that the entire decretal amount was liable to be recovered. In such a situation, the learned executing Court could not have allowed the application and recorded the adjustment or payment, as claimed by the respondent-judgment debtor merely acting on surmises. The order of the executing Court therefore cannot be sustained. Reference may be made in this connection to the decision of this Court in the case of (Krishna Govind Patil v. Moolchand Keshavchand Gujar) reported in A. I. R. 1941 Bombay 302 and the decision in the case of (Nandagopal Gounder v. Kannan and another) reported in A. I. R. 1988 Madras 224. It is well settled that any payment made by a judgment debtor to the decree-holder outside the Court or any adjustment made by him with the decree-holder outside the Court cannot be recognised in the absence of the same being recorded under Order 21, Rule 2 of the Code of Civil Procedure. Sub-rule (2) of Rule 2 which empowers the executing Court to record or certify any payment or adjustment contemplates a judicial decision by the Court whether the payment or adjustment should be recorded or not. The executing Court is bound by virtue of Order 21, Rule 2 (3) not to recognise the payment or adjustment which has not been certified or recorded by sub-Rule (1) and (2) of Rule 2 of Order 21. In the instant case as earlier observed, there is no material on record to enable the executing Court to record adjustment as claimed by the judgment debtor under sub-Rule (2) of Rule 2 of Order 21. In such circumstances, the impugned order passed by the executing Court cannot be sustained. The same is, therefore, set aside. The executing Court has to proceed with the execution of the decree for realisation of the balance amount in terms of the decree.