BOSHNAB CHARAN PATNAIK Vs. W. RAMA NILAMA

JUDGEMENT

(1.) THE judgment debtor No. 5 has filed this 2nd appeal arising out of an order under Section 47 of the Code of Civil Procedure, the lower appellate Court having reversed the judgment of the executing court. One W. Venkatachallam, lawyer at Aska was the original decree -holder, the mortgage decree being dated the 29th June, 1981, the original decree -holder having died his widow is executing the decree. The Execution Case No. 15 of 1989 was filed on 3rd of January, 1939, and was dismissed on 14 -9 -1989. It will be pertinent to state that the previous Execution Case No. 776 of 1935 had been dismissed on 8 -11 -1935. Prima facie therefore this Execution Case No. 15 of 1939 having been filed more than three years after the dismissal of the previous Execution Case was barred by limitation. But the decree -holder wanted to save limitation by taking up the plea of payment of Rs. 100/ - on 17 -9 -1938, the case of the decree -holder being that on that date the judgment debtor No. 3 made the payment on behalf of all the judgment -debtors and there was an exchange of receipts granted by each party. The present Execution case was filed on 7.3.42, wherein the judgment -debtor took up the plea of limitation that the previous Execution c case No. 15 of 1939 was barred by limitation, and as such the present Execution case could not proceed. In the first instance the executing court and the lower appellate court passed judgments observing that the judgment -debtor was precluded by the principle of res judicata to raise the point of limitation. The matter therefore Came up in miscellaneous appeal No. 24 of 1945 before this Court which was disposed of on the 29th of July, 1948, by Ray C.J., and Jagannadha Das, J. (as he then was). They overruled the contention of the decree -holder that the plea of limitation taken by the judgment -debtor was barred by the principle of res judicata. They, therefore, sent back the case for full investigation as to the allegation of the decree -holder that in fact there was a payment of Rs. 100/ -/ - by the judgment -debtor No. 5 and that on behalf of all the judgment -debtors, and further that there was an acknowledgment contained in a receipt signed by the judgment -debtor. Their Lordships, therefore, formulated four points and remanded the Case to be disposed of in accordance with law after giving the parties full opportunities to adduce substantive evidence in support of their respective cases. The points raised were follows:

(2.) AFTER remand, before the executing court the decree -holder's widow who is executing the decree examined five witnesses including herself. That is all the additional evidence that was adduced after remand. The decree -holder indeed relied upon the previous deposition of the original decree -holder Venkatachallam, and an affidavit filed by Venkatachallam deposition was taken in one Miscellaneous Judicial case arising out of the same execution proceedings and the affidavit was filed in Execution Case No. 15 of 1939. In the affidavit and also in the previous deposition the payment of Rs. 100/ - by the judgment -debtor hits been mentioned. The trial court in a very exhaustive judgment has disbelieved the witnesses examined on behalf of the decree -holder giving convincing and cogent reasons in support of his findings. He took into consideration quite a number of convincing circumstances against the story of payment and also the passing of receipts. No receipt has been filed in the case and the decree -holder want to explain the non -filing of the receipt on the allegation that while the original decree -holder was alive, he being a very busy lawyer had misplaced the receipt somewhere, and since then it is lost. The trial Court hid fully disbelieved that part of the case also which was intended to be proved on behalf of the decree -holder only on the basis of the evidence of the five witnesses examined. Manifestly it appears to us that the witnesses examined on behalf of the decree holder are all interested. P. W. 1 was the clerk of Venkatachallam. P. W. 2 is his nephew. P. W. 1) is the present decree -holder, the, widow of the original decree -holder. P. Ws. 3 and 4 are the old clients of Venkatachallam. As I have mentioned above, this is not the only ground on which the trial Court discarded their evidence. He has enumerated quite a number of reasons for discarding the evidence of these witnesses. The lower appellate Court, however, has very shabbily treated the judgment of the executing court. We will first of all refer to an observation contained in the -judgment of the previous miscellaneous appeal No. 24 of 1945 appearing in the judgment of Ray, C.J., viz,. We have had that affidavit sworn by the decree -holder and also his evidence in court. We are not satisfied that the evidence comes up to the standard which is expected in a case like this. The learned lower appellate court has misdirected himself in having completely ignored this observation of their Lordships. Indeed, it is apparent from the judgment of their Lordships that this was not their final say as the case was remanded to be decided after further evidence having been adduced by the parties. But nevertheless so far as these two pieces of evidence are concerned, viz, the affidavit and the decree -holder's deposition in the previous M.J.C. the observations are entitled to the highest respect. Apart from these two pieces of documents what other additional evidence has been adduced after remand? It is only the five interested persons who have been examined on behalf of the decree holder and their evidence after thorough scanning has been discarded by the executing Court. The executing court who had the advantage of seeing and examining the witnesses was certainly the best person to assess the evidentiary value of the testimony of these witnesses. It has been repeatedly held by highest authorities that where the case depends solely upon an appreciation of the oral evidence, the opinion of the judge who had taken the evidence, to himself is entitled to very high respect and it is only on very grave, substantial and compelling reasons that the appellate court should disturb the finding. This standard has been completely ignored and violated by the learned lower appellate court in the present case. The lower appellate court has also ignored one important feature that in the previous deposition which has taken on 24 -6 -1944 there is no mention of the fact that the receipt granted by the judgment debtor No. 3 was lost or missing. It appears to us that the judgment of the lower appellate Court to a great extent is based upon some conjectures one of them being that Venkatachallam being a very experienced and busy lawyer cannot be taken to be so careless or unmindful as to get his decree -time barred. The Court forgets for the time being that it is the very case of the decree -holder which speaks of the carelessness of Venkatachallam that the most precious document which would have saved limitation was missing and in spite of that fact, he did not file the execution case in time. It is further to be observed that the decree holder does not even allege the date or the approximate time of the missing of the document. We have carefully perused the judgments of both the courts, and we are definitely of the view that the judgment of the lower appellate court is to be set aside as being illegal. We would therefore set aside the judgment of the lower appellate court, and confirm the judgment of the executing court. The appeal is therefore allowed and the execution case must be dismissed as barred by limitation.

(3.) I agree.