GURDEEP SINGH Vs. GIAN SINGH

JUDGEMENT

(1.) This judgment will dispose of two petitions - Civil Revision Nos. 175 and 177 of 1978 - as they involve a common question of law. For the purpose of this judgment, the facts of Civil Revision No. 175 of 1978 have been noticed.

(2.) Gian Singh, respondent, filed a suit for pre-emption of the land in dispute and on the basis of the compromise, a decree was passed in his favour on July 13, 1971 on the condition that he would deposit Rs. 9800/- on or before July 19, 1973, failing which his suit would stand dismissed. He filed the present execution application on April 28, 1976 for obtaining the possession of the land in dispute. The application was opposed by the petitioner judgment-debtor on the ground that the decree-holder has failed to comply with the compromise decree by not depositing the pre-emption amount within the time fixed. The decree-holder, to prove the payment of Rs. 9800/- produced in evidence the receipt, Exhibit P-2, dated July 13, 1971 according to which the said amount had been paid to the judgment-debtor. In support of this receipt, he examined Harbans Rai, Petition-writer, who scribed the receipt and Harbans Singh, an attesting witness, apart from giving his own statement. After discussing the evidence the executing Court held that the pre-emption amount of Rs. 9800/- had been paid on July 13, 1971 and consequently rejected the objection raised by the judgment-debtor vide judgment dated January 4, 1978. Aggrieved by that judgment, the judgment-debtor has filed this revision petition under Section 115 of the Code of Civil Procedure.

(3.) The finding of the executing Court that an amount of Rs. 9800/- had been paid vide receipt Exhibit P-2, is a finding of fact and nothing has been urged by the learned counsel which could entitle this Court to interfere with that finding in the exercise of its revisional jurisdiction. The learned counsel sought to challenge that finding on the ground that no reliance could be placed on the statements of the witnesses. But on such ground it is not open to me to interfere with the said finding. It was then contended by the learned counsel relying on rules 1 and 2 of Order 21 of the Code of Civil Procedure that a payment made outside the Court in contravention with the direction given in the decree, cannot be taken notice of by the Court. The argument of the learned counsel is wholly fallacious because he is relying on the provisions of rule 1 as it stands after the amendment of the Civil Procedure Code enforced on February 1, 1975. The payment in this case was made in the year 1971 and, therefore, it has to be governed by the provisions of rules 1 and 2 of Order 21 as they stood prior to the said amendment. Rule 1 provides that all money payable under decree shall be paid either into the Court whose duty it is to execute the decree or out of Court to the decree-holder; or otherwise as the Court which made the decree directs. Consequently, the decree-holder could make payment out of Court, according to this rule. Similarly the reliance of the learned counsel for the petitioner on sub-rule (3) of rule 2 which provides that a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree is also misplaced because this clause had been repealed so far as the State of Punjab is concerned by the provisions of the Punjab Relief of Indebtedness Act, 1934. The matter is not res integra and a similar view was taken by Harbans Singh, J. (as he then was) in Bholu Ram and others v. Kanhya s/o Mare and others, 1963 AIR(P&H) 133 wherein it was held that in the State of Punjab, by virtue of Section 36 of the Punjab Relief of Indebtedness Act, 1934, sub-rule (3) of rule 2 has been repealed. The result is, therefore, that irrespective of the fact whether a payment or adjustment has been certified either at the instance of the decree-holder under sub-rule (1) or within 90 days of the adjustment at the instance of the judgment-debtor under sub-rule (2), such payment can be pleaded as defence if the decree-holder takes out the execution of the decree. Consequently, so far as the State of Punjab is concerned, after the decree is discharged, out of the Court, certification by the Court is not necessary. The only matter to be considered in finding out whether a decree has been complied with or not is to see whether the payment, if any, directed by the decree has been made in accordance with the decree or not. It was further held in this decision that where there is a pre-emption decree directing payment by a fixed date and such payment out of Court is sufficient compliance with the decree then all that is necessary to be seen is whether the payment has been made on or before the specified date, and the certification does not form an important part of the compliance with the decree even though direction in the decree was to deposit the amount in the Court by the said date.