DEVINDER KUMAR Vs. S CHANDAN

JUDGEMENT

(1.) This revision petition arises out of an order passed by the executing Court, whereby Objections of the judgment-debtor filed under Section 47 of the Code of Civil Procedure were accepted and in consequence thereof, execution application was dismissed.

(2.) In brief, the facts are that a decree for possession in respect of 87 kanals 17 marlas was passed in favour of one Davinder Kumar and against four persons namely Ratti Ram, Lakhi Ram, Chhota Ram and Chandan. Against that decree, an appeal was filed before the District Judge, where the matter was compromised. As per the compromise, decree was passed for the land measuring 28 kanals 9 marlas instead of 87 kanals 17 marlas. The order in the appeal, on the basis of compromise, was passed on 9.1.1973. On 29.7.1976, the decree-holder filed an execution application against Chandan, who then in response to the notice filed Objections. His main objection was that he was required to pay Rs. 12,000/- to the decree-holder, which he paid in instalments. He further stated that the decree-holder being a litigant minded person never issued any receipt in token of receipt of the amount. The decree-holder denied the averments made in the objection petition. On the pleadings of the parties, the executing Court framed the following issues :-

(3.) Mr. S. C. Sibal, Sr. Advocate, appearing for the petitioner, contended that the executing Court was not justified in accepting the oral testimony of the witnesses with regard to payment of the amount. According to him, under sub-rule (3) of Rule 2 of Order 21 of the Code of Civil Procedure, the payment which has not been certified or recorded as provided under sub-rule (2-A), cannot be recognised by any Court executing the decree. He also referred to the statement of the witnesses to show that the payment was not made by the judgment-debtor.