WATTAN SINGH Vs. NOHAR CHAND

JUDGEMENT

(1.) In this revision petition filed under Article 227 of the Constitution of India the prayer is for setting aside the order dated 23-11-2002 whereby the objections filed by the petitioner in the execution proceedings were dismissed.

(2.) The respondent-decree holder filed an application for execution of judgment and decree dated 16-9-1983. The petitioner- judgment-debtor filed objections stating that the aforesaid decree had become infructuous on 13-6-1988 as the decree-holder had received a sum of Rs. 25,000/- towards decretal amount in full satisfaction of the claim from him vide receipt dated 13-6-1988, Exhibit RW-2 and, therefore, the execution application was liable to be dismissed accordingly. The objections filed by the judgment-debtor, were, however, dismissed.

(3.) Counsel for the petitioner submitted that the whole approach of the executing Court that the judgment-debtor had not paid the amount as stated in his objection petition, was erroneous and therefore, the impugned order is liable to be set aside. On the other hand, counsel appearing for the respondent while supporting the impugned order drew my attention to Rule 2 of Order XXI of the Code of Civil Procedure and submitted that under the said provision, a duty is cast upon the judgment-debtor to inform or certify such payment to the executing Court for getting the same recorded by the Court and the failure of the judgment-debtor not to follow that procedure would clearly indicate that no payment had in fact been made by him. The counsel further contended that even otherwise, as per sub-rule (2-A) of Rule 2 of Order XXI, no payment or adjustment is liable to be recorded at the instance of the judgment-debtor unless the same has been made in the manner provided in Rule 1, or the same is proved by documentary evidence or is otherwise admitted by the decree holder in reply to the show cause notice given under sub-rule (2) of Rule 1, or before the Court. Learned counsel in support of this argument placed reliance on a judgment of the Apex Court in Badamo Devi v. Sagar Sharma, 2000 (1) Apex Court Journal 59 : (1999 AIR SCW 4810).