KISHANCHAND Vs. PRAHLAD DAS

JUDGEMENT

(1.) IN execution of a money decree against the petitioner he made an application on March 14, 1960 to the executing court alleging that he had paid Rs. 100/ - to the decree holder out of court in full satisfaction of the decree. The decretal amount is Rs 196/ -. This application was summarily thrown out by the executing court without any enquiry. Aggrieved by this order the judgment -debtor has come here in revision and it is urged by Shri Raghunandan Swaroop that the executing court was bound to institute an inquiry, because the question was one of fact and was disputed by the other side. Shri Vishwaroop concedes in fairness, that an application alleging payment out of court should not be dismissed without inquiry. He, however, urges that this case has its own peculiarities, namely, the payment was alleged for which no receipt was produced in the court; and execution application had already been pending when the alleged payment was stated to have been made; and if the payment had really been made, the judgment -debtor would not have remained quiet from the 10th January to the 14th March.

(2.) REALLY , I am not today concerned with the merits of the application made by the judgment -debtor in the executing court. May be, it is frivolous as is endeavoured to be demonstrated by Shri Vishwaroop. But that does not mean that such an application can be summarily thrown out without an inquiry. As to Shri Vishwarup's argument that a tendency is growing with judgment -debtors to make such applications, alleging imaginary and fictitious payments out of court, just for the purpose of holding up execution proceedings, I do not say anything about the remark of the learned counsel. But it seems to me that the remedy lies not in arbitrarily dismissing applications without taking recourse to the procedure, but it lies in: (1) an expeditious disposal by giving a short date for the parties to produce their evidence and (2) if the application is found frivolous, to award compensatory costs under section 35 -A of the Code of Civil Procedure. The last mentioned section is the appropriate instrument in the hands of the court to deal with applications which are frivolous and vexatious to the knowledge of the judgment -debtor.