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Petitioner: P. NARASAIAH VS Respondent: P. RAJOO REDDY
Court Name: Andhra Paradesh High Court Judge(s): B. P. Jeevan Reddy, Mrs. Amareswa ri, Upendralal Waghrav Title: P. NARASAIAH vs P. RAJOO REDDY Case No.: Civil Revision Petition No, 2413 of 1983 Date of Judgment:1988-04-29 Reported As: 1990 MLD 431 Result: Petition dismissed
JUDGMENT
JUDGMENT ' JEEVAN REDDY, J.--This Civil Revision Petition is placed before me on a difference of opinion arising between two learned Judges of this Court. The question upon which difference of opinion has arisen is: whether a judgment-debtor, who does not get the payment made by him outside the Court recorded and certified under sub-rule (2) of R.2 of O.XXI, C.P.C., can be permitted to plead such payment, after the expiry of period of 30 days prescribed by Art. 125 of the Limitation Act, in the execution proceedings taken by the decree-holder? Amareswari, J. Has held that by virtue of S.47, C.P.C., the judgment-debtor is entitled to raise such a plea, while Upendralal Waghray, J. Has held to the contrary. I will first state the relevant facts. 2. The respondent (decree-holder) obtained a decree for money on 26-7-1978. In the year 1979 he filed E.P. No, 20/1979 wherein the judgment-debtor filed a petition, EA. No, 184/1980, on 20-8-1980, pleading that paid the entire decretal amount on 5-1-1979 to the father of the decree-holder under a receipt and, therefore, the E.P. Is not maintainable. E.P. No, 20/1979 was dismissed for default on 29-11-1980. Consequently, E.A. 184/80 was also dismissed. Sometime later, the decree-holder filed another Execution Petition, being E.P. 73/1981, on 23-2-1981. On receiving the notice of E.P., the judgment-debtor (revision-petitioner) appeared and filed a counter raising the very same plea, viz. That he has paid the entire decretal amount on 5-1-1979 to the father of the decree-holder who was looking after the affairs of the decree-holder; that he has already filed the receipt evidencing the payment in EA. 184/80, and hence the Execution Petition is liable to be dismissed. The executing Court heard the parties and held, by its order dated 18-8-1983, that it is not open to the judgment- debtor to raise such a plea inasmuch as he did not get the said payment recorded and certified under O.XXI, R.2(2), C.P.C. It held that by virtue of sub-rule (3) of R.2 of 0. XXI, a payment which is not
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so recorded and certified, cannot be recognized by the Court. The judgment-debtor, thereupon, filed the present Civil Revision Petition questioning the order of the learned District Munsif. 3. The Civil Revision Petition first came up before M. Jagannadha Rao, J., before whom the learned counsel for the judgment-debtor contended that Art. 125 of the Limitation Act, in so far as it prescribes a period of thirty days for the judgment-debtor to have the payment certified, is discriminatory and violate of Art. 14 of the Constitution. The argument was that while prescribing such a period of limitation for judgment-debtor, no period of limitation is prescribed for the decree-holder to apply under sub-rule (1) of R.2 of O.XXI. It was also argued that prescribing a short period of thirty days is also liable to he struck down under Art. 14 of the Constitution, as being arbitrary. In view of the nature of the said contention, the learned Judge directed the Civil Revision Petition to be posted before a Division Bench. However, when the matter came up before the Division Bench, counsel for the judgment-debtor did not argue the question as to the constitutionality of Art.125 of the Limitation Act. The arguments before the Division Bench-- comprising of Amareswa ri and Upendralal Waghray, JJ.-- centred round the question indicated at the inception of this judgment, viz., whether a judgment-debtor who does not get the payment outside the Court recorded under O.XXI, R.2(2), C.P.C., is entitled to plead the same after the expiry of 30 days from the date of said payment, in execution proceedings initiated by the D.H., and whether S.47, C.P.C. Permits him to do so. Amareswari, J. Was of the view, mainly influenced by the decision of the Supreme Court in M.P. Shreevastava v. Veena, AIR 1967 SC 1193 that since the plea raised by the judgment-debtor relates to execution, discharge or satisfaction of the decree, it can be raised and has to be decided by the executing Court. Section 47, the learned Judge observed, is designed to prevent multiplicity of proceedings, and the power of the Court under S.47 is not controlled by 0. XXI, R.2 which, according to the learned Judge, deals with a different situation altogether. In that view, the learned Judge set aside the order of the executing Court and remanded the matter to the executing Court for determining the truth or otherwise of the plea raised by the judgment-debtor. Upendralal Waghray, J. Was of the opinion that there is no irreconcilability between O.XXI, R.2, and S.47 of C.P.C. The learned Judge opined that while S.47, confers jurisdiction on the executing Court to decide questions relating to execution, discharge, or satisfaction of the decree, 0.XXI, R.2 prescribes the procedure, while Art. 125 of the Limitation Act prescribes the period of limitation for a certain class of applications. The substantive power of the executing Court under S.47, the learned Judge observed, has to be exercised in accordance with the procedure prescribed by 0.XII, R.2, and observing the provisions of Art. 125 of the Limitation Act. In this view of the matter, the learned Judge upheld the order of the executing Court and dismissed the Civil Revision Petition. The said difference of opinion has occasioned the reference to a third Judge. 4. For a proper appreciation of the question it would be appropriate to set out S.47, sub-rules (1) and (2) of R.1 of 0.XXI, R.2 of O.XXI,C.P.C., as amended by the Amendment Act, 1976, as well as Art. 125 of the Limitation Act. They read thus: ' Section 47, C.P.C.: "47.--(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) xx (omitted by Amendment Act, 1976 w.e.f, 1-2-1977). (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. ' Explanation I.--For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
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' Explanation II.--(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decee is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section." ' O.XXI, C.P.C.: "R.1.--(1) All money, payable under a decree shall be paid as follows, namely:-- (a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a hank; or (b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or (c) otherwise, as the Court which made the decree, directs. (2) Where any payment is made under Cl.(a) or Cl. (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due....". "R.2.--(1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted, in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2-A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless- - (a) the payment is made in the manner, provided in R.1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of R.1, or before the Court. (3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree." Art. 125 of the Limitation Act:
Description of applicationPeriod of limitationTime from which period begins to run xxx Xxx Xxx 125. To record an adjustment or satisfaction of a decree.Thirty days. OrWhen the payment adjustment is made. xxx Xxx Xxx
5. The object underlying S.47 is to ensure that all questions relating to execution, discharge or satisfaction of the decree should he determined only by the executing Court, and not by a separate suit. The object is to avoid multiplicity of proceedings. Order XXI deals with execution of decrees. Rule 1 exhibits the concern of the rule-making authority to leave no room for frivolous
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pleas of payment of money due under a money decree. It contemplates the money due under such a decree to be paid in any of the three modes specified therein. Any other mode of payment is not recognized. The three modes are: (a) depositing the money in the Court empowered to execute the decree, or sending the money to that Court by postal money order or through a Bank; (h) direct payment to the decree-holder through postal money order or through a Bank, or "by any other mode wherein payment is evidenced in writing", and (c) in such manner as the Court passing the decree directs. Of these three modes, mode (h) deals with payment outside the Court and it is here that there is room for controversy. Even in this mode, normally no controversy is possible where payment is made by postal money order or through a Bank; controversy often arises where the payment is made out of Court directly' to the decree-holder "by any other mode wherein payment is evidenced in writing". It is cases of this type which arise frequently for decision before the executing Court. In many cases the decree-holder denies the receipt or the writing, as the case may be, and terms it as false or fabricated. 6. Coming to R.2, it deals with cases where the decree is satisfied or adjusted out of Court. It deals not only with money decrees, but with decrees of all kinds. In other words, it not only speaks of payment of money under a money decree, but also adjustment of any other kind of decree. Sub- rule (1) says that where a decree is so satisfied or 'adjusted', the decree-holder shall certify such payment or adjustment to the Court which is to execute the decree, and the Court shall record the same accordingly. Sub-rule (2) then says that in case of such payment/adjustment, the judgment-debtor may also inform the Court of such payment or adjustment, and request it to record and certify the same. If any such information is laid before the Court, the Court shall issue notice to the decree-holder to show cause why such payment or adjustment be not recorded and certified. If the decree-holder appears and denies the payment or adjustment, the Court shall make necessary enquiry and pass appropriate order. Sub-rule (2-A) provides that a payment or adjustment which can be recorded or certified under R.2, is only a payment which is made in the manner provided in R.1, or where such payment or adjustment is admitted by the decree-holder in the Court, or in his reply to the notice given under sub-rule (2) or R.1 of O.XXI. Sub-rule (3) of R.2 then declares that a payment or adjustment which has not been certified or recorded as contemplated by the said Rule "shall not be recognized by any Court executing the decree". Article 125 of the Limitation Act prescribes thirty days' period of limitation for recording an adjustment or satisfaction of the decree from the date of payment or adjustment. The question is: where neither the decree- holder nor the judgment-holder gets the payment/adjustment recorded and certified as contemplated by O.XXI, R.2, and where the decree-holder takes out execution of his decree, is it open to the judgment-debtor in such execution proceedings to plead such payment or adjustment, after the expiry of the period of 30 days from the date of payment/adjustment? 7. Sri L. Narasimha Reddy, learned counsel for the petitioner (judgment-debtor), submits that while S.47 is a substantive provision defining the powers of an executing Court, Rr. 1 and 2 of O.XXI are merely procedural in nature. These procedural rules cannot control, or cut down the ambit or scope of S.47. More important, sub-rule (2) which enables the judgment-debtor to inform the Court of such payment or adjustment, uses the expression 'may', while in the case of decree-holder sub- rule (1) of R.2 says that "the decree-holder shall certify such payment or adjustment to the Court " (Sub-rule (2) of R.2 says "the judgment- debtor also may inform the Court of such payment or adjustment, and apply to the Court. The rule-making authority must be deemed to have knowingly and deliberately used these two expressions in these two sub-rules. In other words, the judgment- debtor is not under an obligation to have such payment/adjustment recorded and certified by the Court; he may choose to do so, or may not choose to do so. If he does not choose to do so, his right to plead such payment/adjustment, as and when the decree-holder takes out execution, is not taken away. Section 47 contemplates that such a plea should be enquired into and determined by
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the executing Court. Counsel further argues that sub-rule (3) of R.2 must be read consistent with sub-rule (2), and cannot equally control S.47. 8. On the other hand, Sri R. Thimma Reddy, learned counsel for the respondent (decree-holder), submits that there is no inconsistency between S.47 and Rs, 1 and 2 of O.XXI. Order XXI prescribes the procedure which must be followed while determining the questions relating to execution, discharge, or satisfaction of a decree by the executing Court. True it is that sub-rule (2) of R.2 of O.XXI uses the expression `may'; but, this expression has to be understood as `shall' by virtue of the mandatory provision contained in sub-rule (3). Sub-rule (3) expressly states that a payment or adjustment which has not been certified or recorded under sub-rule (1) or sub-rule (2) of R.2, "shall not be recognized by any Court executing the decree". Counsel submits that in view of the said provision, a judgment-debtor is under an obligation to have the payment/adjustment recorded and certified by the Court, if such payment or adjustment is made or arrived at outside the Court. Counsel also submits that such a construction would be consistent with the concern of the rule- making authority to leave no room for frivolous pleas of payment/adjustment, and should be adopted. This would also make the provision in Art. 125 of the Limitation Act meaningful, contends the counsel. 9. Part .11 of the Code of Civil Procedure containing Ss. 36 to 74 deals with execution of decrees and ordeRs, Order XXI in the First Schedule to the Code also deals with the same subject. There can be no conceivable inconsistency between Ss. 36 to 74, and the several Rules contained in O.XXI. Indeed, O.XXI merely elaborates and provides detailed provisions to carry out the intent and purposes of the provisions contained in Ss. 36 to 74. The Rules in the First Schedule to the Code including O.XXI, are preferable to Part-X containing Ss. 121 to 131. Section 121 says that the Rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled 'or altered in accordance with the provisions of the said Part. Section 122 empowers the High Courts in the country A to make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and that the Rules so made may annul, alter or add to all or any of the Rules in the first Schedule. Rules 1 and 2 of O.XXI are evidently based on the assumption that a judgment-debtor would not, ordinary, pay the amount due under the money decree passed against him outside the Court without ensuring proper proof of such payment. Rules 1 and 2, therefore, make detailed provisions providing the manner in which the payment or adjustment outside the Court should be made. They also provide that if any such payment or adjustment is made outside the Court, it should promptly be got recorded and certified by the Court which is competent to execute the decree, either at the instance of the decree-holder or the judgment- debtor. It also declares that a payment or adjustment made outside the Court, which has not been certified or recorded in accordance with R.2, shall not be recognised by any Court executing the decree. Rule 2 of O.XXI does not deal with the payment or adjustment of the decree in Court, i.e,, in execution proceedings taken by the decree-holder. (The judgment-debtor may well wait for execution proceedings, and go and pay the money -- In case it is a money decree -- or satisfy the decree in the appropriate manner where it is the decree of any other kind. The payment so made, or the satisfaction provided by him will naturally be recorded by the executing Court. There can be no controversy about his payment/adjustment in such situation) a judgment-debtor need not wait for the decree-holder to take out execution. As soon as the decree is passed or at any time thereafter, the judgment-debtor can himself pay the money due under a decree; but this has to be done in any one of the three modes mentioned in O.XXI, R.1(1). Now, the law says further that if money is paid or adjustment of decree of any kind is arrived at outside the Court, it should be promptly got recorded and certified as contemplated by R.2. This can be done either by the J.D. Or by the decree-holder; but in the very nature of things, a judgment-debtor should be more concerned in having such payment or adjustment recorded and certified by the Court. Art. 125 of
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the Limitation Act provides a period of 30 days for applying to the Court for recording an adjustment or satisfaction of the decree, from the date of payment or adjustment. There is no provision for extending the said period. Since by virtue of sub-rule (3) of R.2 of O.XXI "a payment or adjustment, which has not been certified or recorded as aforesaid (in accordance with R.2) shall not be recognized by any Court executing the decree," any payment or adjustment not certified or recorded in accordance with R.2 of O.XXI is no payment or adjustment in law. Any such payment or adjustment cannot be recognized by the Court executing the decree -- unless, of course, the decree-holder himself admits the same. Therefore, when a decree-holder takes out execution, the judgment-debtor will not be entitled to plead -- if by the date of his plea a period of thirty days has expired from the date of payment or adjustment, as the case may be -- that he has paid the money due, or has otherwise adjusted the decree, outside the Court. It is, no doubt true that the use of the expression 'may' in sub-rule (2) of R.2 has given room for controversy and argument; but, in my opinion, the said expression has to be construed and understood in the light of sub-rule (3) of R.2, and if so read, the expression 'may' is liable to be construed and understood as 'shall'. By placing this construction no inconsistency arises between O.XXI, R.2 and section 47. When S.47 declares that all questions relating to execution, discharge or satisfaction of a decree shall be enquired into and determined only by the Court executing the decree and not by a separate suit, it does not mean that the provisions in O.XXI, R.2 read with Art. 125 of the Limitation Act should be ignored. Indeed, one should read them together harmoniously. As stated hereinbefore, the several Rules in O.XXI supplement, illustrate and elaborate the provisions contained in Part-II of the Code. The object behind sub-rule (3) of R.2 of O.XXI is to shut out any plea of payment, or adjustment, which is not promptly got recorded and certified under the said Rule. The idea is to preclude any such pleas and leave no room for them. 10. Before I refer to the decisions on the point, it would be appropriate to notice the distinction between the present Art. 125 of the Limitation Act, and the corresponding Art. 174 in the 1908 Act. Art. 174 of the Limitation Act, 1908, read as follows:--
Description of suit: Period of limitationTime from which period begins to run Art. 174: For the issue of a notice under the same Code, to show cause why any payment made out of Court of any money payable under a decree or any adjustment of the decree should not be certified,"Ninety days.When the payment or adjustment is made.
' The language of Art. 174 clearly indicated that it governed an application made by the judgment- debtor under sub-rule (2) of R.2 of O.XXI, C.P.C., whereas there are no words in the present Art. 125 to confine it to an application by the judgment-debtor only. On the language of the present Article, it appears applicable both to an application by the decree-holder under sub-rule (1) of R.2 of O.XXI, as well as to an application by the judgment-debtor under sub-rule (2) of R.2. Of course, this does not mean that a decree-holder cannot admit a payment or adjustment beyond the period of thirty days. If he himself admits such payment or adjustment, no controversy arises and there is no occasion for any enquiry or determination. This distinction between the two Articles must be kept in mind while appreciating the observations in some of the decisions referred to hereinafter.
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11. In Subramanyyam v.' Ramasviami, AIR 1932 Mad. 372, a Full Bench of the Madras High Court held clearly that "where a decree has been adjusted, if the decree-holder does not certify such adjustment to the Court, the judgment-debtor himself may apply to the Court to issue a notice to the decree-holder to show cause why such an adjustment should not he recorded as certified. Under Art. 174, Limitation Act, he has 90 days in which to do this. If the decree-holder has not certified the adjustment and the judgment-debtor has not got the adjustment recorded within that period, such an adjustment cannot be recognized by the Court executing the decree....", it was held that such a bar applies even where the execution is taken out by the transferee decree-holder, and that a judgment-debtor is precluded from raising such a plea to oppose a transfer under R.16 of 0. XXI, C.P.C. 12. In Humayun Properties v. Ferazzinis Ltd., AIR 1963 Cal. 473, it was observed that a payment of money under a decree or an adjustment, casts a duty upon the decree-holder to certify such payment or adjustment to the Court, whose duty it is to execute the decree; that, there is no particular form for such certification, nor any period of limitation. Where, however, the decree- holder has not done his duty, the judgment-debtor may inform the Court of such payment or adjustment and apply to the Court to issue a notice of the decree-holder to show cause why such payment or adjustment be not recorded and certified, and that this gives rise to a judicial proceeding. If the decree-holder denies, the Court has to determine the said question. It was also observed that Art. 174 of the Limitation Act prescribes a period of 90 days from the date of alleged payment or adjustment for making such an application. In that case, a particular payment was neither certified by the decree-holder nor got recorded by the judgment-debtor and, therefore, it was held that the decree-holder is entitled to execute the decree. 13. In Rajappa v. Krishnappa & Sons, AIR 1974 Kant 51 a learned Single Judge of the Karnataka High Court, Malimath, J., clearly ruled that an adjustment not recorded under O.XXI, R.2 cannot be taken note of. This is what the learned Judge said: "The second objection is in regard to some sort of an arrangement that was arrived at after the decree was passed. As there is no certification of adjustment as required under 0.XXI, R.2 of the Civil Procedure…
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