TAJINDER SOOD Vs. KASHMIR SINGH

JUDGEMENT

(1.) THE revision petition is against an un -certified payment pursuant to a compromise after the decree was set up in defence as a partial discharge of the suit plaint. The court found that although the compromise was true the payment had not been certified by the Court in the manner contemplated under Order 21 Rule 1 and 2 of the CPC. The Executing Court has no power to receive proof of payment which is un -certified as a defence in execution. Learned counsel states that under Section 47 of the CPC all disputes relating to execution shall be only through an application and not by a separate suit. This Section must be understood to make available the defence which can be taken in execution. The Supreme Court has explained in Lakshmi Narayanan Vs. S.S. Pandian : (2000) 7 SCC 240 where in any execution proceedings objection to executability is taken under Section 47 on the ground that by virtue of a compromise, the decree got extinguished and became inexecutable, the germane question should be asked is whether the compromise was recorded by the court whose duty it is to execute the decree. This caution shown by Supreme Court answers the situation arising in this case. Neither the compromise said to have been entered into, by the parties after the decree was recorded nor the payments certified by the Court. An uncertified payment which is not a defence which could be taken in execution and the remedy for a person who has made payment which is not certified in Court shall be only to file an independent suit for recovery of the wrongfully paid amount and for damages. The right of a judgment debtor to recover damages for the loss occasioned through an uncertified payment has been examined at length by the Kerala High Court in a Division Bench judgment in C.K. Xavier Vs. Bhagaraj Singh and another : AIR 1987 Ker 145 while holding that a judgment debtor would be barred from pleading part satisfaction of a decree through an uncertified payment held that neither Section 47 CPC nor Order 21 Rule 2 CPC will preclude a defendant to institute a suit for recovery of money and for damages. The judgment examines the case law across the length and breadth of the country from all Courts, Madras, Bombay, Allahabad, Rangoon, Patna, Nagpur and Rajasthan, all the Courts holding that the remedy lies only in a separate suit. I am not reproducing all the judgment cited for obvious reasons of a needless duplication of work. The petitioner will therefore avail the remedies through an independent suit.

(2.) THE rejection of the objection by the Executing Court was perfectly justified and there is no merit in the civil revision.