POTTAM SREERAMULU AND SONS Vs. GUDLA SURYANARAYANA

JUDGEMENT

(1.) THE decree -holder in an execution proceeding is the Petitioner in this revision assailing the order of the Court below dropping the execution proceeding on the finding that the decretal amount had been adjusted. The acts in brief are that the Petitioner obtained a compromise decree in Money Suit No. 30 of 1978 against the opposite party on 14 -4 -1980 the terms of which were that the opposite party would pay Rs. 2,500/ - in full satisfaction of the decree for an amount of Rs. 5,000/ - and in the event of default, the Petitioner would be at liberty to execute the decree with full interest and costs. Since the amount was not paid by the opposite party, the Petitioner levied execution in 1983 for realization of Rs. 5,757.65.

(2.) THE sole point raised by Mr. Rao, the learned Counsel for the Petitioner, is that the impugned ' order is hit by the provisions of Order 21 Rule 2, Code of Civil Procedure. It is his submission that the decree -holder never certified the payment allowed to have been made by the opposite party and that the opposite party also never informed the Court of such payments and had not applied to the Court to issue notice to him to show Cause as to why such payment should not be recorded or certified. According to him, the limitation for filing an application by the opposite party before the Court to issue notice to the decree -holder for the purpose of certifying the payment has been made is thirty days from the date of the payment as provided under Art. 125 of the limitation Act. Since the paddy as allowed was paid in 1981, 1982 and 1983 without any application having been made either within the time or even beyond it and the alleged payment having not been recorded or certified, it is the contention of Mr. Rao that the alleged payment or adjustment is not available to be recognised by the Court executing the decree as provided for under Order 21, Rule 2(3), C.P.C.

(3.) IN the result, the Civil Revision is allowed; The order of the learned Subordinate Judge is set aside and the execution proceeding is restored to file. The teamed Subordinate Judge is directed to proceed with the execution proceeding from the stage where it was before the impugned order. There shall be no order as to costs. The I.C.R. be sent back immediately.