SRIGOPAL BAGLA Vs. BHAWANI SANKAR SANTHALIA

JUDGEMENT

(1.) - The petitioner obtained a decree for Rs. 20,811.75 p. against the opposite party and put it into execution. In the execution case (Commercial Execution No. 26/81), he filed an application on February 27, 1984 stating that the opposite party had paid him Rs. 15,000 on September 2, 1983 and praying for necessary orders for recovery of the balance. The opposite party in his turn filed all application under section 47 of the Code of Civil Procedure ('Code' for short), which was registered as Misc. Case No.477 /88, contending that the above sum of Rs. 15,000 was paid in full satisfaction of the decree and praying for striking out the execution case. After hearing the parties the learned Judge allowed the Misc. Case and aggrieved thereby the petitioner has filed this revisional application.

(2.) Having perused the impugned order in the light of relevant statutory provisions, we are constrained to say that same is patently illegal and unsustainable. Admittedly the sum of Rs. 15,000 has been paid out of Court by the opposite part: the petitioner. While according to the petitioner the same paid in part satisfaction of the decree, according to the opposite party it was in full satisfaction for which he possessed valid receipt . The petitioner, however, contends that the receipt was obtained by threat and coercion. Be that as it may, any payment made out of Court has got to be certified or adjusted in accordance,the provisions of Order 21 Rule 2 of the Code, otherwise such payment cannot be recognised by the executing Court in view of express language of sub-rule (3) thereof... In the instant case petitioner certified payment of Rs. 15,000 in part satisfaction the decree which was recorded by the Court in its Order No. 44, dated May 11, 1985 and it issued directions for realisation of balance .If the opposite party wanted to assert that the payment was made in full satisfaction of the decree, the only course open to him was to make an application under Order 21 Rule 2(2) of the Code within the period of limitation prescribed by Article of the Limitation Act.

(3.) Mr. Chatterjee appearing for the opposite party however submitted that the question involved in the instant case being on satisfaction of the decree it could be decided by invoking Section 47 of the Code, and without taking recourse to Order Rule 2 of the Code. This contention is wholly misconceived, Section 47 of the Code only provides that questions relating the execution, discharge or satisfaction of the decree would decided by the executing Court and puts an embargo on institution of separate suit; and Order 21 of the Code through its various Rules lays down the procedure and formalities to be gone for asking and determining such questions. In other words while Section 47 speaks of the Court which only has the power entertain and answer questions relating to execution, discharge satisfaction of the decree Order 21 lays down the modalities the thereof. In that view of the matter it must be held that the learned Judge erred in observing that Order 21 Rule 2 had no manner application. We, therefore, allow this application and set a the impugned order being No.65, dated 17-1-87.