P NARASAIAH Vs. P RAJA REDDY

JUDGEMENT

(1.) This Civil .Revision Petition arises out of execution proceedings. O.S. No.. 463 of 1978 was decreed on 26-7-1978. The decree-holder filed E.P. No.20 of 1979 for realisation of the amount, by attachment and sale of the properties. The said E.P. was dismissed on 29,-11-80 as the decree-holder failed to file the sale papers. Then the decree-holder filed the present E.P. No. 73 of 1981 for the same relief namely, attachment and sale of the properties. The judgment-debtor pleaded thai he has paid the entire amount of one lakh on 5-1-1979 to the father of the decree-holder and the E.P. is therefore not maintainable. He also stated that he filed E.A. No. 184 of 1980 under Section 47 C.P.C. requesting the Court to terminate the execution as the decree amount had already been paid.

(2.) The trial Court tried this issue as preliminary issue and held that since the judgment-debtor has not filed an application within 30 days as required by sub-rule (2) of Order 21 CPC for recording satisfaction of the decree, any payment made by him cannot be recognised by the executing Court and posted the E.P. for subsequent steps viz., attachment and sale of the properties. Aggrieved by the said order, the judgment debtor, has now come up in revision.

(3.) Our learned brother Jagannadha Rao, J., before whom this revision came up for hearing referred the case to a Division Bench as the case involves an important question of law. To decide this question, it is necessary to refer to Order 21 Rule 2 which is as follows :- "2. Payment out of Court to decree-holder : . (1) Where any money payable under a decree of any kind 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 Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor or any person who has become surety for the judgment debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2-A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless- (a) the payment is made in the manner, provided in Rule 1; or (b) the payment or adjustment is proved by documentary evidence ; or (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of Rule 1, or before the Court. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree." Article 125 of the Limitation Act prescribed a period of 30 days for the judgment-debtor to file an application from the date of payment or adjustment to record and certify the satisfaction of the decree. In this case, the amount was alleged to have been paid on 5-1-1979 and the execution application for recording the payment was made on 20-8-80 i.e., 7 months after the payment was made. The trial Court held that the payment cannot be recognised as it has not been certified or recorded since the judgment-debtor did not file an application within 30 days from the date of payment. But the learned Counsel for the petitioner relied upon Section 47 CPC which is as follows;- "47 Questions to be determined by the Court executing decree :- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." Relying on this Section, it is submitted that as per the present Section 47 any question relating to the satisfaction of the decree shall be determined only by the Court executing the decree and not by way of a separate suit and therefore, the executing Court is the only Court which has to consider the question and a separate suit is barred.